Director of Public Prosecutions v Waters
[2019] VCC 1553
•25 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01260
CR-19-01258
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER WATERS |
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JUDGE: | His Honour Judge Johns | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2019 | |
DATE OF SENTENCE: | 25 September 2019 | |
CASE MAY BE CITED AS: | DPP v Waters | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1553 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – Historical sexual offending – five complainants - one charge of indecent assault upon a male and two charges of indecent assault – plea of guilty - six charges of indecent assault and one charge of gross indecency with a child under 16 – guilty verdict following trial – catholic priest - breach of trust – s5AA Sentencing Act 1991 – previous positive good character disregarded for some charges – delay – serious sex offender – life sex offender registration – immediate term of imprisonment partly suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the Directions of Public Prosecutions | Ms R. Harper and Ms S. Clancy | Office of Public Prosecutions |
| For the Accused | Ms A. Beech and Ms K. Mildenhall | MNG Lawyers |
HIS HONOUR:
1 Peter Waters, you have pleaded guilty on indictment H11451811.B.1 to one charge of indecent assault upon a male, which carries a maximum penalty of five years imprisonment, and two charges of indecent assault, which carry a maximum penalty of five years imprisonment.
2 You were found guilty by jury verdict after a nine day trial on indictment H11451811.C on 26 August 2019 of six charges of indecent assault and one charge of gross indecency with a child under 16.
Circumstances of the offending – indictment H11451811.B.1
3 The circumstances of the offending are set out in the Prosecution Plea Opening dated 2 September 2019 (Exhibit A) which forms part of these reasons for sentence.
4 Your offending in relation to that indictment which I will refer to as, 'the plea indictment', occurred between 1979 and 1981 against two young males, who were brothers.
5 You are now 74 years of age and were aged between 33 and 36 at the time of the offending.
First victim – Damian Parks[1]
[1] A pseudonym
6 I will refer to the first victim as, Damian Parks, he was born in May 1963. You met the first victim, Damian, in 1976 when he was a 13-year-old student at St Joseph's Technical College in Abbotsford two years after his father had died. At the time you were Assistant Parish Priest at St Vincent de Paul at Strathmore and were in charge of the altar boys, a role which the victim held.
7 In 1977 the victim also joined the church choir.
8 You became a family friend and visited the family home on numerous occasions before moving to Dandenong Parish in March or April 1978. While you were at Dandenong, the victim visited you, once alone and once with his older brother.
9 In January 1979 you moved to East Oakleigh Parish, also known as Holy Redeemer, at the same time the victim began Year 11 at Strathmore High School.
10 At some time in 1979 or 1980, in the school holidays, the victim visited you for an overnight stay in the Oakleigh presbytery. The victim was no older than 17 at the time but possibly as young as 15 (you will be sentenced in relation to this matter on the basis that he was 17 years of age). The victim went to bed after consuming a glass of whiskey and woke up during the night to find you getting into the right side of his bed. You put your hands down the front of the victim's pants and fondled his penis. (Charge 1 on the plea indictment, this incident is part of a rolled-up charge.)
11 On another occasion in 1980 you invited the victim to accompany you and another person on a trip to Warrenbayne near Benalla. The three of you had a late meal, a walk and then drank alcohol. The victim recalls feeling tipsy and leaving the dishes in the sink. All three of you got up soon after when you heard mice in the sink so you did the dishes and returned to bed.
12 Before light the victim (aged 17) was woken by you getting into his bed, and you fondled his penis and cuddled up against him and you were groaning. (That is the second incident that forms part of the rolled-up charge of Charge 1 – indecent assault upon a male.)
13 On a third occasion at St Mary's Church in East Malvern in 1981 when the victim was 17 years old, he stayed the night with you in the presbytery. You both consumed alcohol and cigarettes and the victim went to bed on a fold out couch. Again, you climbed into the victim’s bed during the night and fondled his penis, groaning while you did so. The next morning the victim told you he did not want anything to happen again like the night before. That incident provides context for Charge 2 on the indictment, which is as follows.
14 A month or two after that incident, the victim again went to bed on the fold out couch in East Malvern. Early in the morning you got into the bed and cuddled him (Charge 2 – indecent assault). The victim assertively told you he did not want this to happen and then you got out of the bed.
15 In 1983 the victim first disclosed the offending to his brother.
16 In 1988 the victim disclosed the offending to a Church Youth Team in general terms and a week later he told a friend what had happened.
17 At some stage prior to 1991 he also disclosed the offending to his sister and her husband.
18 In 1999 the victim reported you to the Commission into Sexual Abuse.
Second Victim - Anthony Parks[2]
[2] A pseudonym.
19 I turn to the second victim on the plea indictment, who I will refer to as, Anthony Parks, he was born in February 1962. He is the elder of the two boys.
20 He was in his first year at St Joseph's Christian Brothers Technical School at the time and lived in the family home in Strathmore.
21 When he was in form three or Year 9 at school he met you through being an altar boy at the local church. You were welcomed into his family home and became something of a role model to the victim.
22 When the victim was about 16, he went to your confessional. He confessed to masturbation and you asked if it was him by name. He replied that you were right as to who he was, and you asked him about how and when he masturbated. You counselled the victim that 'Some guys get erections when they go to bed'. The victim felt that he was being encouraged by you to keep masturbating.
23 In 1981 the victim (then aged 19 or thereabouts) went to stay at St Mary's Presbytery in East Malvern with you. He went to bed wearing his pyjamas but was woken by you climbing into the bed beside him. The victim lay on his left side as you got under the covers and you placed your right hand on his inner thigh, towards his penis. The victim pretended to be asleep as you put your hand inside his pyjama bottoms and placed your hand onto his penis, and commenced fondling his penis for a time until you got out of the bed. (Charge 3 – indecent assault).
24 Nothing was said the next day and the victim did not visit you on a regular basis after this incident.
25 In January 1982 the victim disclosed to his brother that something had happened to him but did not go into detail.
26 Later the victim disclosed the offending to his sister and girlfriend.
27 In 1999 the victim disclosed the offending to the Independent Commission.
Record of Interview
28 On 28 February 2000 you participated in a taped record of interview in relation to these matters, that is the matters on the plea indictment.
29 You stated;
· that you knew the boys through your parish appointment at Strathmore;
· that the victims did go and stay with you at the presbytery;
· you went to Warrenbayne with Damian Parks, you went to bed and got up and found mice over the dishes;
· you recalled Damian Parks staying on a fold out couch in the East Malvern Presbytery;
· you denied the allegations put to you.
Victim Impact
30 Damian Parks provided and read his victim impact statement to the court at the plea hearing.
31 In summary he said;
The fact that I was abused by a priest, a leader in our church, has had an impact on the way I have related to leaders in the church – I have treated them with suspicion and aloofness and this has denied me the chance to be close friends with any of them. I do have friends who are priests, however this abuse has always caused a barrier in those friendships that I have not been able to overcome.
I have received counselling over the years for this abuse.
The biggest social impact of the abuse is the effect it has had on my relationship with my brother. We were best buddies as we were growing up – we went to footy on Saturdays, played cricket in the backyard, shared interests, played together, went to the same school, shared a room. When we both changed schools and moved to the local high schools we started drifting apart. My [brother’s] mental health began to deteriorate and I wasn't sure why. I felt helpless and guilty, unsure how to be the brother I wanted to be. When [my brother] told me he had also been abused by Waters my suspicions to the cause of his struggles were somehow confirmed. Instead of being a cause for becoming closer, it seemed to tear us apart – we were both unable to support each other anymore at that time and so we became estranged. Over the next two decades or so we avoided each other.
Ironically it has been over the last attempt to achieve justice with these crimes that we have become closer again. At least for that I am grateful. However, it has made me all the more aware of the years lost, knowing and having a normal brotherly relationship with this generous, kind and thoughtful man that is my brother.
32 That is a summary only, of course, of the victim impact material which I have read and taken into account.
33 Anthony Parks was present in court at the plea hearing but declined to provide a victim impact statement.
Circumstances of the offending – Indictment H11451811.C
34 I now turn to the circumstances of the offending relating to Indictment H11451811.C, which I will also refer to as, 'the trial indictment'. Your offending occurred against three boys, who were brothers. The offending was between 1981 and 1987.
35 You were between the ages of 35 and 41 years of age at the time of the offending.
Third Victim – Daniel Morrow[3]
[3] A pseudonym.
36 The victim Daniel Morrow, born in September 1966, met you in 1980 or 1981 when you were the Assistant Parish Priest at St Mary's Church in East Malvern where his grandparents were parishioners. The victim's immediate family were parishioners at Our Lady of Victories church in Camberwell where you later became the Assistant Parish Priest.
37 The victim's family were heavily involved with the church and played in the band and attended youth group. You would attend dinners and family celebrations and the victim regarded you as a mentor and friend.
38 From the age of 14 or 15 the victim was regularly given 'the blessing' by you, which he describes as a 'priestly blessing'; involving the sign of the cross, and a kiss on the forehead or cheek. This was part of the goodnight routine.
39 As Daniel Morrow’s parent's relationship broke down, his father spent more time at the family holiday house in Ocean Grove.
40 Over time the goodnight routine involved a kiss on the lips. The first time this happened the victim was 15 or 16 years of age and was in bed. The victim woke up to someone coming through the bedroom door and sitting on the edge of the bed and saw it was you. You leant in and said you were 'Here to say goodnight'. You gave him the sign of the cross on his forehead with your thumb, held his face between both your hands and kissed him on the lips for one to two seconds. (Charge 1 – Indecent assault – you will be sentenced on the basis that he was the later of the possible ages, which was 16). The victim turned his head and used his hands to push you away and you left the room.
41 After this incident a kiss on the lips became part of the goodnight routine. If the victim ever pushed you away you would say words to the effect of 'Don't be so prudish'.
42 You then began to incorporate stroking the victim's chest into the goodnight routine. This happened almost every time you said goodnight to him.
43 On one occasion you gave the victim a blessing, kissed him on the lips and stroked his chest, lowering your hand towards his lower abdomen, past his belly button and then crept close to his genital area. The victim pushed your hands away and rolled over.
44 On another occasion between 1983 and 1984 (when Daniel Morrow was between the ages of 16 and18) at around 10.30 pm or 11 pm, you started the goodnight routine, gave the usual blessing and kissed the victim on the lips. You pulled back the covers and lay down in the bed with him, stroking his chest until he fell asleep. The victim then woke up to find your hands fondling his penis and genital area. (Charge 2 – Indecent assault – and consistent with the approach I have stated, even though Daniel Morrow may have been as young as 16 on that occasion, you will be sentenced on the basis that he may have just turned 18). The victim pushed you away and rolled over. You kissed him on the forehead and left the room.
45 You and the victim maintained a friendship and the victim would stay at your house at Phillip Island. The victim worked as a gardener at the presbytery and had a key to the presbytery.
46 In 1985 he accompanied you to Europe. Daniel Morrow turned 19 in September 1985. On one occasion in Italy you booked a room with only one bed for you both to share. During the night Daniel Morrow woke to find your hand down his pants, fondling his genitals (uncharged act).
When the victim was back in Melbourne you requested that when the victim was out, he go to the presbytery to quickly say goodnight to you on his way home. On one occasion in the second half of 1986, the victim entered the presbytery with his key and went to your bedroom where you were. The victim made the sign of the cross on your forehead with his thumb and gave you a kiss on the forehead. You grabbed him and pulled him back in and kissed him on the lips. After he pulled back you grabbed his hand and put it underneath your sheets placing it on your chest. You then took off the sheet exposing your naked body and erect penis. You put your hand behind his head and pushed his head down towards your erect penis. The victim stood up, told you to 'Fuck off' and punched you on the chin. (Charge 3 – indecent assault.The victim being aged 19 or 20) .
47 It was after this incident the victim decided not to have anything more to do with you where possible.
48 The victim first disclosed your offending to his wife in the early 1990s. At some stage between 1991 and 1992 Daniel Morrow told his brother that he was abused by you. In 1999 he disclosed the final incident he alleged to Peter O'Callaghan QC as part of the Independent Commission.
Fourth Victim – Harry Morrow[4]
[4] A pseudonym,
49 Turning to Harry Morrow, who was born in September 1972. The victim went to Our Lady of Victories Primary School attached to the church next door in Burke Road Camberwell. You were Parish Priest at East Malvern and friendly with his mother before transferring to Our Lady of Victories at around the time the victim became an altar boy.
50 As has been noted, you became close to the family and were often present for dinner. You often picked the victim up and carried him to bed, kissing his head and telling him that you loved him. On occasions you would rub the victim's chest and stomach.
51 One night in 1984 when the victim was approximately 12 years old, he fell asleep on the couch in his pyjamas and woke to find you carrying him to the bedroom he shared with his brother. You placed him into his bed in the empty bedroom and sat down next to him. You told him you would help him go to sleep and put your hand under his pyjama top and stroked his chest. You moved your hand down towards his belly button and then under the elastic of his pyjama bottoms, and your fingertips brushed across his penis. You stroked his stomach and chest again before you began to touch his penis in a brushing motion with your hand, brushing your fingertips over the top of his penis and moving your hand back up to his stomach repeatedly. As you did so your breathing became heavier. (Charge 4 on the trial indictment – indecent assault, the victim may have been as old as 13 at the time.).
52 The victim rolled over onto his chest with his arms underneath protecting himself. As he did so you stopped and left the room.
53 You had a holiday house on Phillip Island and on one occasion took the possibly 12 to 14-year-old victim to stay with you. The victim came into the lounge room from putting his things down in a bedroom and you were in blue tartan boxer shorts with buttons down the front and you had an erection. Your penis was sticking out of the fly of the boxer shorts and you said, 'Oh look what's happened, Percy has popped out', and, 'Oh God, look at it, look at it'. You invited him to hit it or slap it or touch it in some manner. (Charge 6 – Gross indecency. As I have stated, due to the uncertainty of dates, the victim may have been aged somewhere between 12 and 14 and I will sentence you on the basis that he was 14.)
54 The victim touched your penis and then left the house and headed down to the general store down the road to ring his mother. You drove him home later that day.
55 On occasions you would stay with the victim's family at their holiday home in Ocean Grove. The victim slept in a room with a bunk and a single bed and it was on one occasion when he was aged 13 to 14, he was asleep in the single bed when you came into the room. There was no one else present and you got into bed and lay behind him as if you were giving him a cuddle. You were naked as you did so and the skin of your erect penis was touching the back of his bare legs. (Charge 5 - indecent assault and I will sentence you on the basis that that occurred when the victim was 14 years of age). The victim jumped out of bed and threw all the blankets and doonas on you and you threw them off, so your penis was just covered. The victim grabbed his disposable camera and took a photo of you while you were lying in the bed.
56 After 1987 the victim did not have a lot to do with you and then moved to live with his father in Queenscliff half way through Year 10.
57 The victim first disclosed the offending to his brother in 1992 or 1993.
Fifth Victim – Gregory Morrow[5]
[5] A pseudonym.
58 Gregory Morrow was born in October 1967. He attended Our Lady of Victories Primary School in Camberwell.
59 He recalls you being a constant presence in their family life as the family attended Our Lady of Victories Church each week and were members of the choir and the band. You would come for dinner and attend sporting events with them and you were around the family home more frequently when the victim's parents separated in 1985.
60 The victim shared a bedroom with his younger brother in his early years, and then moved into a bungalow at the back of the house for Years 11 and 12 in 1984 and 1985.
61 If you were over for dinner and stayed until the victim went to bed, you would often go into the bungalow to say goodnight to him. Whenever you did so, you would rub his back, neck and shoulders and sometimes you would masturbate him.
62 On one such occasion between October 1983 and December 1985 the victim was in bed and had turned off the light when he heard footsteps and saw the silhouette of you in the doorway. He rolled onto his stomach with his right side closest to the wall. You sat on the edge of the bed and rubbed and stroked his back and shoulders for 10 or 15 minutes. You then reached over his back and moved your hand to his stomach, palm up and fingers pointing down towards his groin. You put your hand inside his clothing and onto his penis, you rubbed it until he ejaculated. You left the bungalow soon after. (Charge 7 on the trial indictment – indecent assault – he was aged somewhere between 16 and 18.As he may have been 18 I will sentence you on that basis.)
63 The victim first disclosed the offending to police on 14 June 2016.
Record of Interview
64 You participated in a second taped record of interview on 3 May 2017. On that occasion you told police that;
· you basically only socialised outside of church duties with families at weddings and baptisms;
· you were friendly with the victims' parents through their marital difficulties;
· you would attend dinners at parishioners' homes as a courtesy, including the victims' family home;
· the boys were in the youth choir and they played guitars;
· you met the boys when they were in their late teens;
· you were not in contact with the boys' family when you were overseas;
· you said you did not have a key to the family home;
· you never kissed Daniel Morrow on the lips;
· your friendship with Daniel Morrow ended because you were going overseas and were not able to perform his marriage; and
· you also said the boys may have had a dependency on you.
Victim Impact
65 Daniel Morrow provided a Victim Impact Statement which was read by prosecuting counsel at the plea hearing. In summary, in some parts of the statement he stated;
'My relationship with Peter was different to anything I had experienced, and he often expressed his love and affection towards me. I believed and trusted him – he was my rock during a time when I was vulnerable.
Priests have a privileged position in the community as leaders and nurturers of spiritual faith. The progression of sexual abuse I suffered stemmed from the priestly act of giving me a blessing. Peter Waters robbed me of a spiritual life and attempts to return to the church triggered memories of hurt, betrayal and sorrow. This remains an ongoing ache in my adult years.
Peter Waters carefully developed a close and intimate friendship with me and I trusted him completely, sharing everything. The most difficult aspect of being sexually abused by Peter has been his betrayal of trust. Today, I struggle to trust people and am cautious about the motives of any new people I meet, thinking that they might be out to take advantage of me.
My initial attempt to deal with the pain and trauma was to suppress all memories of Peter Waters, and dive whole heartedly into my work. During the mid-1990’s, I began having uncontrolled flashbacks of distressing sexual and emotional incidents involving Peter Waters. The flashbacks occurred randomly during the night or day and they caused me great discomfort and anxiety, depriving me of sleep and haunting me with memories I had tried to forget.
The abuse has also impacted my ability to experience the joy of intimacy.
It has hurt me deeply that my mother feels some level of responsibility for what occurred. My mother trusted Peter and he manipulated her, who at the time, was a broken woman. As a parent I can only imagine the unrelenting guilt I would feel if similar abuse occurred to my own children under my supervision in my own home'.
66 Harry Morrow also provided a Victim Impact Statement which was read by prosecution counsel at the plea hearing. In summary he said;
'I was a child when I met Peter Waters. He was my saviour from the family destruction that was going on all around me. I was lost and desperately needed a friend and some stability. Peter gave me friendship and attention.
Peter Waters took away my childhood innocence. He irrevocably changed me and stole my trust. I remember the feelings of him making me feel so good with his attention and friendship and yet I remember him making me feel so confused and uncomfortable. Peter Water’s abuse isolated me further from my parents and brothers and by doing so, drove an even greater wedge through our weakened family structure.
I was so miserable and threatened by Peter Waters' presence in my home that I ended up leaving my mother and brothers and moving to Ocean Grove to live with my father. Peter Waters stole my childhood innocence, my feeling of safety in my own home and living with my mother and brothers from me.
I continually question why this all happened to our family by a trusted friend and priest'.
67 Gregory Morrow, provided a Victim Impact Statement. He requested it not be read out in court or referred to in these reasons and I have read and considered that Victim Impact Statement.
68 I take into account the impact upon each of your five victims.
69 The victim impact material highlights the aspects of your offending which make it so serious. Evidence at the trial fleshed out the circumstances in which you inveigled yourself into the lives of the Morrow brothers.
70 Your reputation, your charm, your wit, your intelligence and your musical ability were all useful attributes in gaining the trust of Patrick[6] and Rachelle Morrow[7] and the respect, perhaps even adoration at times, of the boys. It was your role as a priest that underpinned the other appealing features however. The Morrow family were devout. They were heavily involved with the Church.
[6] A pseudonym.
[7] A pseudonym.
71 You abused, not only the trust two parents placed in you as a mentor and role model for their sons, you also abused your role as a priest – one who was looked upon as providing religious, spiritual and pastoral guidance.
72 The same relationship is clear where the brothers Damian and Anthony Parks are concerned. Their families trusted the Church. Each of them were brought up with that trust. When their father passed away in their early teenage years it was natural for you to be looked upon as a mentor, and as one in whose care, their spiritual lives would receive sound guidance.
73 A recorded telephone conversation, to which you were a party, was before me in an unrelated matter. In that conversation the words you used to describe your priestly role was, 'God's representative on Earth'. In 1970s and 1980s Melbourne it would not be at all surprising if the Parks and Morrow families saw you thus.
74 You had access to these boys' lives that your role as a priest, and the relative innocence of the times, allowed.
75 The confusion and sense of betrayal that followed, for each of them, when you breached their trust and manipulated the mentor, friend, or priestly role into one involving sexual assault, has been devastating for them.
76 One consequence of your conduct, among many, is that the dawning of your brazen hypocrisy has led to a distance from the Church for at least one of your victims.
77 Your Counsel acknowledged early in her plea that the context of the offending reflects its gravity as much or perhaps more than the bare conduct does. This is undoubtedly so. The context demonstrates the monumental breach of trust involved in your offending.
78 Daniel Morrow describes the offending that rolled off what began as a priestly blessing. You abused that sacred relationship.
79 Gregory Morrow was a young boy of 12 or 13 when your offending began. His family life was in disarray. You used that circumstance for your own depraved ends. In his traumatic home life, you added another layer of despair and insecurity.
80 I have already noted how Daniel and Anthony Parks were vulnerable to your influence due to being from such a large family and losing their father in their formative years.
81 In relation to each victim, the progression from trusted friend and priest to sexual predator was an unexpected, confusing and shocking change of circumstances.
82 Each victim in different ways described your manipulative and duplicitous character. Your denials throughout these proceedings – save for near the bitter end where Anthony and Damian Parks are concerned – the skilful cross-examination at committal and during the trial in the interests of undermining credibility and reliability – as well as your audacious sweeping denials at almost every aspect of the three accounts at trial – is consistent with the character they describe.
83 They were boys, or young men ranging in age from 12 to perhaps 20 years of age during the offending. Offending such as yours was not in the public consciousness then, in the way it is nowadays. They were alone and bewildered in times of stress, distress and crisis and they did not have the support available to you, such as a Senior Priest, or the support of the confessional. For obvious reasons you had blocked that avenue for each of them at that time.
Personal Circumstances
84 You were born on 22 March 1945 in Moreland and raised in Pascoe Vale by your father, Maurice Patrick Waters and mother, Greta Mary Waters. Your father was an electrical fitter and your mother a nurse at the Royal Melbourne Hospital.
85 You are the second eldest of six children in the family. Your elder brother is a priest and a professor of cannon law. You have a younger sister who unfortunately passed away some years ago, who was a teacher. You have another younger sister who is a nursing executive. Your younger brother is retired, he was a theatre technician at the hospital. And your youngest brother is a retired teacher and farmer.
86 You attended St Marks Primary School until Grade 4. In 1954 you won a choir scholarship to St Patrick's Cathedral. You then attended St Patrick's for Grade 5 and 6 and was the Dux of the school and won the Religion prize.
87 You won a Diocesan scholarship and attended St Coleman's Central School Fitzroy in 1958 for Year 7. In 1959 you attended Christian Brothers College until Year 11 in 1962.
88 From 1963 to 1964 you attended the Coburg Teachers College.
89 In 1965 you were appointed to the Victorian Education Department Music Branch. You obtained your Teaching, Music and Speech teachers Certificate. You won a nominated course to undertake a Bachelor of Music at Melbourne University Conservatorium of Music.
90 In 1966 and 1967 you continued to study for your Bachelor of Music whilst teaching two and half days a week.
91 In 1968 you attended the Corpus Christi Seminary at Werribee. In 1970 you moved to Corpus Christi Seminary in Glen Waverley and you were the choirmaster there.
92 In 1971 you were chosen with another student at the Seminary to travel overseas to represent the seminary, travelling to Malta, Rome and across Europe.
93 You were ordained on 19 May 1973 at St Patrick's Cathedral. You then completed your 4th theology with Dissertation Synthesis of Theology. Immediately after your ordination you were sent around the State to help in parishes.
94 Your appointments included;
· assistant priest at Malvern, Croydon, Strathmore, Dandenong, Oakleigh East;
· chaplain at Christ College;
· chaplain at St Vincent's Hospital;
· assistant priest also at Camberwell, Mentone; and
· administrator at Aspendale;
· assistant priest at Blackburn;
· administrator at Bell Park; and
· parish priest at Kyneton from 2 November 1994.
95 From 1981 to 1983 you were a full-time lecturer at Christ College (now known as the Australian Catholic University). During this time, you commenced your Master of Education by research through Melbourne University. You travelled to Europe particularly northern Italy as part of this study. On 14 December 1985 you graduated with first class honours and won the Freda Cohen Medal of the University for 'Most outstanding thesis'. After five years you were recalled by the Archbishop to parish work.
96 Your role as chaplain at St Vincent's Hospital was very demanding. You provided pastoral care to a number of patients, you happened to be on call during the night and you were on duty when the Hoddle Street shooting occurred. During the incident you voluntarily comforted the injured and delivered last rites to those injured who were thought unlikely to survive. You did this knowing the shooter was still active in the vicinity.
97 In 1989 you took sabbatical leave to undertake a postgraduate course in Spiritual Theology in Rome. You applied for and were accepted for a position at the Carthusian Order at Parkminster in Sussex however, you had a pulmonary embolism that required a 10 day stint in hospital.
98 You completed a Master of Arts and Theology in Rome in January 1989. You were admitted into the novitiate in Parkminster however, your health deteriorated towards the end of the year and you returned to Australia where you were temporarily appointed as assistant priest of Mentone under then Parish Priest George Pell.
99 You commenced a Doctorate in 1992 and formally completed your PHD in March 1999.
100 When appointed to Bell Park you suffered a mild heart attack.
101 In August 1994 you published a book entitled 'The Ursuline Achievement'.
Melbourne Response
102 In 1999 you received documents from the Melbourne Response. You had an interview with then Archbishop Pell where you were advised you were on administrative leave effective immediately and needed to vacate the Presbytery. At mass in your parish a letter was read to the parishioners advising that you were on administrative leave due to grave allegations of sexual abuse.
103 You did not participate in the Melbourne Response. You resigned on the basis that you would be provided ongoing support from the church via a stipend for accommodation, access to a car and health insurance – you were ineligible for a ministry.
104 You appealed to the congregation for the Clergy in Rome. The congregation ultimately revoked the decrees of then Archbishop Pell, however Archbishop Pell's successor held the same view and you were not appointed to any parish.
105 In 2002 you travelled through the USA. In October 2002 you were notified that the church would no longer support you in any financial way. You ran out of money and applied for unemployment benefits.
106 Eventually you acquired employment with TAFE International as an instructor of English in Qatar. You commenced learning Arabic. In 2004 you lectured at Mazoon University in the English Department. You became Head of the English Faculty, then the Deputy Dean of the University. You remained at Mazoon University for 4 years.
107 In 2008 you worked at Dhofar University at Salalah in Oman and after 2 years transferred to neighbouring University College of Technology for 2 years. In 2010 you took a position at the German University of Technology at Muscat in Oman.
108 Whilst in Qatar and Oman you practiced your Christian faith in private.
109 In 2014 you retired and returned to Australia living in the property at Smith's Beach, Phillip Island.
110 In 2015 you travelled to Bangladesh to voluntarily give seminars and workshops focusing on teachers of English language.
111 This is a brief and inadequate summary of your life's achievements and disappointments, successes and setbacks.
112 I have read the references tendered on your behalf from Father Reto Nay, Sister Julie Bowe and Anthony Krohn, and the bundle relating to your time in the Middle East.
113 No doubt there are many people you have come across in your life, who think very highly of you. There is no doubt you are talented, have worked hard, and achieved and contributed much. This is where the tension between these observations on the one hand, and the abuse that spanned 8 or 9 years and what that conduct says about the life you led during that period of your life on the other, arises.
114 We are all complex creatures of course. The paradox arising from the juxtaposition of your positive attributes and contributions alongside the harm you have caused by your deceitful and wicked offending is an example of the complexity of individuals such as yourself. You are to be sentenced for your offending. What part your good deeds play in that sentence is not a straightforward matter, but they are taken into account in a nuanced way.
Good Character and Absence of Prior Convictions
115 The issue of good character in your case is a convoluted one.
116 Ordinarily, when assessing what can be described as 'Otherwise good character' the common law requires me to disregard the offending before me. The utility of such an exercise becomes diminished when the offending occurs over a period of time and coexists with the indicia of good character. A finding that the offending is 'out of character' in such circumstances is problematic.
117 In your case evidence of good character has been advanced beyond a mere lack of prior convictions. It is positive good character.
118 Section 5AA of the Sentencing Act 1991 requires that I disregard previous good character or lack of previous findings of guilt if satisfied that your previous good character or absence of prior convictions was of assistance to you in the commission of Charges 1,4, 5 and 6 only on the trial indictment, and Charges 1 and 2 only on the plea indictment.
119 I have taken the standard of satisfaction required to be beyond reasonable doubt.
120 Your Counsel, Ms Beech referred me to R v Knoote-Parke [2016] SASFC 37. I found this decision useful on the question, particularly at [56]-[66] and [76]-[82]. Ms Beech submitted that I would need to be satisfied, on evidence, that your offending was assisted in some way by your previous good character or lack of prior convictions. Ms Beech submitted that there was no evidence upon which I could be so satisfied.
121 Ms Harper for the Prosecution contended that I could be so satisfied, particularly on the trial evidence in the Morrow matter.
122 Ms Harper referred me to the Second Reading Speech that reads in part:
'This change will ensure that those who take advantage of their good reputation to commit sexual offences against children cannot then rely upon that reputation to argue for leniency in sentencing. This change is intended to displace the High Court's position on this matter in Ryan v. The Queen [2001] 206 CLR 267 and will implement recommendation 74 of the Royal Commission into Institutional Responses to Child Sexual Abuse's Criminal Justice Report'.
123 There is ample evidence before me in relation to Charges 1, 4, 5 and 6 on the trial indictment that your good reputation or previous good character was central to your regular and enduring presence in the Morrow household and your involvement in the lives of each victim in that household.
124 I am satisfied of that matter to the requisite standard. Accordingly, as a stand- alone matter, I will not have regard to your positive good character prior to the commission of Charges 1, 4, 5 and 6.
125 The section could be interpreted to allow for your absence of prior convictions to be taken into account as a stand-alone consideration, where that matter does not attract the same finding as 'previous good character'. In your case, whilst it would not have assisted your offending in my view if you had previous convictions – this is not the same as concluding that the absence of priors was of assistance to you in the commission of the offence.
126 I am not satisfied to the requisite degree that your lack of previous convictions assisted the commission of the offence. It would be odd if the section allowed good character as a stand-alone matter to creep into the instinctive synthesis via an absence of prior convictions where positive good character and reputation had otherwise been excluded. I am inclined to the view that where good character is excluded pursuant to the section, absence of prior convictions, as being indicative of good character, follows.
127 If I am wrong in that conclusion this conundrum provides no effect in the final analysis. Consideration of a 'lack of previous convictions' as a stand-alone matter in a case such as this, divorced from considerations of your prospects of rehabilitation, leniency, specific deterrence and good character - has no weight in the sentencing exercise in my view.
128 Being of 'otherwise good character' and the absence of convictions are considerations that overlap and form part of an assessment of your prospects of rehabilitation. My finding that 'previous good character' as a stand-alone consideration regarding the trial indictment matters is to be excluded as a consideration, does not deprive the instinctive synthesis of those matters which speak to my assessment of your prospects of rehabilitation, specific deterrence and the need for protection of the community, and more generally an assessment of the person before me who falls to be sentenced. Good character and the absence of a criminal history are such matters.
129 In relation to the charges relating to Damian and Anthony Parks there is no direct evidence that your reputation, previous good character or lack of convictions assisted you in the commission of the offence. The indirect evidence is insufficient for the requisite standard of proof.
130 Accordingly, previous good character affords you the slight mitigation that is available in a case such as this in relation to the plea indictment.
Delay
131 One consequence of the delay of 30 to 40 years between the offending and today's date is the fact that I am sentencing an individual who has changed somewhat from the time of the offending. At the very least your circumstances have changed.
132 You are now 74 years of age. Your age is relevant to my sentencing task. The sentence I impose will represent a greater portion of your remaining years than it would for a younger man. You are not in perfect health for your age. Your age and the state of your health are factors that will impact adversely on your experience of custody.
133 The delay also provides an opportunity to better assess your prospects of rehabilitation, and the need for specific deterrence and the protection of the community.
134 Your subsequent conduct over the past 30 years contains much to your credit.
135 I consider that you have very good prospects of rehabilitation. Specific deterrence is not a factor which carries much weight in your case. I do not consider you to be a risk of reoffending. In these circumstances, and given your age and personal circumstances, protection of the community is not a factor that calls for prominence, other than by way of operation of s.6D of the Sentencing Act.
136 You have pleaded guilty to Charges 1 to 3 on Indictment H11451811.B.1. You are entitled to a discount for the utilitarian value of your pleas. Charge 1 on that indictment is a rolled-up charge representing two incidents.
137 You are to be sentenced as a serious sexual offender on Charges 3 to 7 on the trial indictment and on each of the charges on the plea indictment. I note this in the records of the court.
138 When sentencing you as a serious sexual offender I must have regard to the protection of the community from you as a principal purpose for which your sentence is imposed, when I am determining the length of your sentence. I have given this consideration the prominence required but have concluded that the protection of the community is not a significant factor in your case, as I have already stated.
139 The presumption of concurrency is reversed for the sentences imposed on you as a serious sexual offender. I have applied the principle of totality nevertheless.
140 As a consequence of my sentence you must be registered as a sex offender. By virtue of you committing these offences your reporting period as a registered sex offender is for life.
141 I have had regard to the maximum penalties and to current sentencing practices. The relevant practices are those currently applied rather than those applied by the courts at the time of your offending.
142 The principle of equal justice requires however that I also take into account sentencing practices at the time of your offending, if they are ascertainable, on the basis that those practices are relevant to arriving at a sentence that is just in all of the circumstances.
143 Your counsel provided me with some materials that allowed for this analysis.
144 General deterrence and denunciation remain as very significant factors in the sentencing process in your case.
Sentence
145 On Charge 1 on the plea indictment you are sentenced to be imprisoned for 8 months;
146 On Charge 2 on that indictment you are sentenced to be imprisoned for 3 months;
147 On Charge 3 on that indictment you are sentenced to be imprisoned for 6 months;
148 On Charge 1 on the trial indictment you are sentenced to be imprisoned for 3 months;
149 On Charge 2 on the trial indictment you are sentenced to be imprisoned for 7 months;.
150 On Charge 3 on the trial indictment you are sentenced to be imprisoned for 9 months;
151 On Charge 4 on the trial indictment you are sentenced to be imprisoned for 15 months (and this will be the Base Sentence);
152 On Charge 5 on the trial indictment you are sentenced to be imprisoned for 15 months;
153 On Charge 6 on the trial indictment you are sentenced to be imprisoned for 12 months;
154 On Charge 7 on the trial Indictment you are sentenced to be imprisoned for 7 months.
155 I direct that 2 months of the sentence imposed on Charge 1 on the Plea indictment, and 3 months of the sentence imposed on Charge 3 on that indictment be served cumulatively on each other and on the base sentence.
156 I direct that 3 months of each of the sentences imposed on Charges 2 and 3 on the trial indictment, and 4 months of each of the sentences imposed on Charges 5 and 6 on that indictment, and 2 months of the sentence imposed on Charge 7 of the trial indictment be served cumulatively upon each other and on the base sentence.
157 That makes a total effective sentence of 36 months.
158 I suspend 22 months of that sentence for a period of 24 months, which leaves 14 months of the sentence to be served immediately.
159 I declare pursuant to s.18 that you have served 20 days as pre-sentence detention
160 In relation to Charges 1 to 3 on the Plea indictments, I declare pursuant to s.6AAA that were it not for your pleas I would have sentenced you to be imprisoned for 9 months on Charge 1, four months on Charge 2 and seven months on Charge 3.
161 An application was made for an order pursuant to s.464ZF(2) of the Crimes Act 1958.
162 I make that order based on the seriousness of the circumstances of the offending and that it was not opposed and that the granting of the order is in the public interest. I must caution you, Mr Waters, that you are to provide a scraping of the mouth for the purposes of that order and if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted. You can be seated, Mr Waters.
163 Now are there any issues that have arisen?
164 MS HARPER: No issues with the sentence, Your Honour, but I have - - -
165 HIS HONOUR: Adds up all right?
166 MS HARPER: It adds up, Your Honour, yes. But I have the original of Harry Morrow’s victim impact statement - - -
167 HIS HONOUR: Yes. Thank you.
168 MS HARPER: - - - which I did not have on the last occasion. I would seek to replace the copy with the original version.
169 HIS HONOUR: Yes. Well, that has already been exhibited.
170 MS HARPER: It has.
171 HIS HONOUR: And the original will replace the copy.
172 MS HARPER: Thank you, Your Honour.
173 HIS HONOUR: Any matters, Ms Mildenhall?
174 MS MILDENHALL: No, Your Honour.
175 HIS HONOUR: No? All right, you can take Mr Waters away now, thank you.
176 (At this stage the accused left the court.)
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