DPP v Klep
[2006] VSCA 98
•19 April 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 6 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| FRANK GERARD KLEP |
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JUDGES: | BUCHANAN, VINCENT and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 April 2006 | |
DATE OF JUDGMENT: | 19 April 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 98 | 2nd Revision – 8 May 2006 |
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Criminal Law – Sentencing – Crown appeal – 14 counts of indecent assault against adolescent boys by offender in charge of school infirmary – Offences committed 30 years’ ago – Total effective sentence of 36 months’ imprisonment and suspension 24 months of a sentence for a period of three years manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mr M.A. Gamble | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr O.P. Holdenson, Q.C. | Hargreaves (Tony) & Partners |
BUCHANAN, J.A.:
Between 1973 and 1979 the respondent, a Salesian priest, was in charge of the infirmary at the Salesian Catholic college in Sunbury.
In October 2005 the respondent was arraigned in the County Court and pleaded guilty to a presentment containing 14 counts of indecent assault. The victims of the assaults were adolescent boys in the infirmary. After a plea the respondent was sentenced on each count to be imprisoned for terms varying from two months' imprisonment to 20 months' imprisonment. With a degree of cumulation a total effective sentence of 36 months' imprisonment was produced. The sentencing judge directed that 24 months of the sentence be suspended for a period of three years.
In 1994 the respondent was convicted on four counts of indecently assaulting two youths in their mid-teens. The offending occurred between 1975 and 1977. The respondent received an intensive correction order. As a result of those convictions the respondent was to be sentenced on all the counts on which he was presented in 2005 as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991.
The Director has appealed against the sentence on the sole ground that it was manifestly inadequate. In particulars of this ground it is alleged that the sentencing judge failed to have regard to certain factors, gave insufficient weight to some factors and gave too much weight to other factors.
The counts concerned assaults upon 11 victims. The respondent supervised the students in the infirmary and slept in a nearby room. The victims were students at the College.
Count 1 concerned a day pupil at the College who was 15 years old. When he was in the infirmary the respondent stroked the inside of his leg and touched and rubbed his genitals. The respondent undid the complainant's trousers and fondled, kissed, licked and sucked his penis. The respondent told the student not to tell anyone as he could get into trouble. Count 2 concerned the same victim on the same day. When the complainant was in the music room the respondent touched and rubbed him in the region of his genitals. The victim of count 3 was a boarder aged 14 or 15 years who was being treated in the infirmary. In the early hours of one morning the respondent approached his bed, rubbed him on the stomach, fondled his genitals and placed his mouth on top of the complainant's penis. Count 4 was a representative count. It concerned sexual assaults upon a boarder who was aged between 14 and 16 years when the assaults occurred. On the first occasion the respondent fondled the complainant's genitals and did so on a number of occasions thereafter. Count 5 concerned the same victim as count 4. When he was in the infirmary the respondent fondled and sucked his genitals. The count was also a representative count. The same conduct occurred on many occasions in the period between 1975 and 1977. Count 6 concerned a student who was 14 years old and was sleeping in the infirmary. Late at night the respondent felt his victim's stomach and then fondled his penis under his clothing for several minutes.
Count 7 related to a boarder who was between the ages of 16 and 17 years and was in the infirmary pretending to be sick in order to avoid exams. Late one night the respondent began caressing his lower back and then proceeded to caress his buttocks over his underpants. The respondent then left the room when he heard a noise. Later he placed his hand upon the victim's stomach, rubbing lower until he reached the pubic hair area, but was disturbed when someone entered the room. The victim of count 8 was a boarder aged 13 to 15 years who was sleeping in the infirmary. He was awoken at night by the respondent rubbing his stomach, going lower and lower and then rubbing his penis. He rolled over to signal that he was waking up and the respondent rubbed his victim's penis. Then the victim rolled onto his stomach and the respondent left the room. Count 9 concerned a boarder aged 14 years. The count was a representative count. The respondent rubbed the victim's groin area, undid his trousers and masturbated him until he ejaculated. That type of offending occurred on four occasions. Count 10 concerned the same victim as count 9. Again, it was a representative count. The respondent fondled the victim's penis, put his penis in the respondent's mouth and sucked it. The same conduct was repeated on another occasion.
Count 11 concerned the younger brother of the victim of count 6, who was either 14 or 15 years old and was staying overnight in the infirmary. He awoke with stomach pains to discover that his pyjama pants were undone and the respondent was sitting next to him rubbing his stomach in a circular motion and then rubbing his penis. Count 12 concerned a boarder who was 12 or 13 years old who was in the infirmary with measles. The respondent examined him, undid his shirt and pulled his pants down and then held his penis, claiming that he was looking for spots. The count was a representative count. On the same day, when the complainant was lying in bed, the respondent came into the room, pulled the complainant's pyjamas down, exposed his penis and stared at it until he was interrupted by another person entering the room. Count 13 concerned a 13-year-old boarder who was sleeping in the infirmary. He awoke to find the respondent's hand down the inside of his pyjama pants, fondling his penis. The count was a representative count; the like conduct occurred on three occasions. The offending the subject matter of count 14 involved a boarder who was 15 or 16 years old. When he was in the infirmary trying to sleep, he became aware that the respondent was pulling his pyjama pants down, exposing his genitals. The respondent took hold of the victim's penis and began stroking it. He then held the victim's penis upright and began sponging it and his scrotum with a wet sponge.
The respondent is now 62 years old. He was one of nine children from a devout Catholic family. He attended a Salesian school and at the age of 16 years began a program for those aspiring to the priesthood. When he was 18 years old the respondent began to train as a priest and was ordained in 1972.
In 1968, when the respondent was 25 years old and studying theology in Ohio, he was embraced by a fellow student. This was apparently the respondent's first sexual experience. The only instruction or advice he had received in sexual matters was that any sexual urges were to be suppressed. According to the evidence of a psychologist given in the course of the plea, the offences were committed while the respondent was sexually immature and was beginning to experiment in a way that other persons would have done at a much earlier age. The psychologist also said that the respondent had little insight into his offending and would not fare well in a sexual offenders program. Despite this evidence the sentencing judge found that the respondent had developed some insight into his sexuality and acknowledged his wrongdoing.
In 1980 the respondent obtained a further degree from Fordham University. On returning to Australia he was appointed rector of a theological college and later worked as a community youth leader. A number of references to the respondent's good character were tendered in the course of the plea. The sentencing judge said that the respondent had "achieved much that is good and valuable".
As a result of the commission of these offences the respondent was forbidden by his superiors to celebrate mass or carry out any other functions of a priest. The respondent was assigned to parish secretarial duties and was ostracised by many of his fellows. His expulsion from the Salesian order and the priesthood is imminent.
There can be no doubt as to the gravity of the offences, which were repeated over a period in excess of five years. The respondent exploited his authority and abused the trust placed in him by the community and the families of his victims. Victim impact statements give a glimpse of the long-term emotional trauma caused by the respondent's actions to youths at a most vulnerable period in their lives. It is important that young persons like them should be protected by the law. The objective of general deterrence ought to have been a significant factor in sentencing the respondent. It is also important that the courts clearly denounce crimes such as those committed by the respondent.
The respondent could rely on his pleas of guilty, the remorse accepted by the sentencing judge and the punishment he had received in the termination of his vocation. Nevertheless, in my opinion the sentence and the suspension of the major part of it simply did not reflect the seriousness of the respondent's conduct. Counsel for the respondent relied upon the failure of the prosecutor at the plea to submit that a sentence of three years' imprisonment would be inadequate in response to defence counsel's request for a suspended sentence, and submitted that this Court should not allow the appeal to be maintained. In my opinion the attitude of counsel below cannot determine the outcome of this appeal. If the sentence is manifestly inadequate, the failure of the prosecutor below to foresee that eventuality and warn the sentencing judge against it may be regrettable, but it is not now decisive.
In my opinion the sentence was manifestly inadequate. Accordingly, I do not stay to deal with the particular error relied upon by the Director of the absence of a base sentence on which other sentences could be cumulated.
Bearing in mind the principle of double jeopardy faced by the respondent, I would re-sentence the respondent to a term of 18 months' imprisonment on count 1, to a term of six months' imprisonment on count 2, to a term of 18 months' imprisonment on count 3, to a term of 12 months' imprisonment on count 4, to a term of two years' imprisonment on count 5, to a term of six months' imprisonment on count 6, to a term of six months' imprisonment on count 7, to a term of six months' imprisonment on count 8, to a term of two years' imprisonment on count 9, to a term of two-and-a-half years' imprisonment on count 10, to a term of six months' imprisonment on count 11, to a term of nine months' imprisonment on count 12, to a term of six months' imprisonment on count 13, to a term of nine months' imprisonment on count 14. Fourteen months of the sentence imposed on count 1, six months of the sentence imposed on count 2, 14 months of the sentence imposed on count 3, eight months of the sentence imposed on count 4, 24 months of the sentence imposed on count 5, two months of the sentence imposed on count 6, two months of the sentence imposed on count 7, two months of the sentence imposed on count 8, 24 months of the sentence imposed on count 9, five months of the sentence imposed on count 12, two months of the sentence imposed on count 11 and five months of the sentence imposed on count 14 are to be served concurrently with each other and with the sentence imposed on count 10. In re-sentencing the respondent I have not thought it necessary to impose a disproportionate sentence in order to protect the community from the respondent. The total effective sentence is five years and 10 months' imprisonment. I would fix a period of three years and six months' imprisonment before the respondent is to be eligible for parole.
VINCENT, J.A.:
I agree.
NETTLE, J.A.:
I also agree. I wish only to add that much of the sentencing judge's analysis appears to me to be informed by the notion that the respondent has already been substantially punished by reason that he has been denied the faculties of a priest and is now likely to be defrocked. In the result, it appears to me that the judge may have imposed an effective sentence and a minimum term of imprisonment very considerably less than that which otherwise she might have. No doubt it is a relevant consideration that a prisoner may have suffered loss of office or profession or trade as a result of his or her offending: that is one of the factors to be borne in mind in determining the level of punishment to be imposed. Equally there can be no doubt that such a loss of office cannot be treated as a substitute for the punishment which the law requires, and it appears to me, if I may say so with great respect, that her Honour's analysis goes perilously close to that position.
BUCHANAN, J.A.:
The formal orders of the Court will be:
The appeal is allowed.
The sentence imposed in the County Court is set aside. In lieu thereof the respondent is sentenced to be imprisoned for a term of 18 months on count 1, for a term of six months on count 2, for a term of 18 months on count 3, for a term of 12 months on count 4, for a term of two years on count 5, for a term of six months on count 6, for a term of six months on count 7, for a term of six months on count 8, for a term of two years on count 9, for a term of two-and-a-half years on count 10, for a term of six months on count 11, for a term of nine months on count 12, for a term of six months on count 13, and for a term of nine months on count 14. Fourteen months of the sentence imposed on count 1, six months of the sentence imposed on count 2, 14 months of the sentence imposed on count 3, eight months of the sentence imposed on count 4, 24 months of the sentence imposed on count 5, two months of the sentence imposed on count 6, two months of the sentence imposed on count 7, two months of the sentence imposed on count 8, 24 months of the sentence imposed on count 9, five months of the sentence imposed on count 12, two months of the sentence imposed on count 11, two months of the sentence imposed on count 13, and five months of the sentence imposed on count 14 are to be served concurrently with the sentence imposed on count 10. Otherwise the sentences are to be served cumulatively.
The total effective sentence is a period of five years and 10 months' imprisonment.
A period of three years and six months' imprisonment is fixed before the respondent is to be eligible for parole.
It is declared that 139 days are to be reckoned as already served and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
The respondent is sentenced on each count as a serious sexual offender and it is ordered that that fact be entered in the records of the Court.
It is declared that the respondent must continue to comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 for the remainder of his life.
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