R v AB (No 2)
[2000] NSWCCA 467
•6 December 2000
Reported Decision: [2000] 117 A Crim R 473
New South Wales
Court of Criminal Appeal
CITATION: R v AB [No 2] [2000] NSWCCA 467 FILE NUMBER(S): CCA 60716/96 HEARING DATE(S): 05/10/2000 JUDGMENT DATE:
6 December 2000PARTIES :
Regina v ABJUDGMENT OF: Spigelman CJ at 1; O'Keefe J at 2; Barr J at 62
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 96/11/0564 LOWER COURT JUDICIAL
OFFICER :Freeman DCJ
COUNSEL : Crown: T Buddin SC
Appellant: PR BoultenSOLICITORS: Crown: SE O'Connor
Appellant: Greg Walsh & CoCATCHWORDS: Criminal law - sentencing - commission of offences volunteered - extradition rights waived - pleas of guilty - appropriate discount for utilitarian value - Criminal law - sentencing - sexual offences committed by teaching brother on young pupils LEGISLATION CITED: Criminal Appeal Act 1912 s 6(3)
Extradition Act 1988 (Commonwealth) s 42CASES CITED: AB v The Queen (1999) 198 CLR 111
R v Cartwright (1989) 17 NSWLR 243
CDJ v VAJ (1998-1999) 197 CLR 172
R v Davies (1978) 68 Cr App R 319
R v Foster (1992) 25 NSWLR 732
R v Gallagher (1989) 44 A Crim R 256
R v Gallagher (1991) 23 NSWLR 220
The Queen v Golding (1980) 24 SASR 161
R v Hayes (1981) 3 A Crim R 286
House v The King (1936) 55 CLR 499
R v Itamua [2000] NSWCCA 502
R v Lowe (1977) 66 Cr App R 122
Lowndes v The Queen (1998-1999) 195 CLR 665
R v Many (1990) 51 A Crim R 54
Minister for Aboriginal Affairs v Peko Wallsend Limited (1985-1986) 162 CLR 24
Pearce v The Queen (1998) 194 CLR 610
R v Perez-Vargas (1986) 8 NSWLR 559
R v Ridsdale (1995) 78 A Crim R 486
R v Thomson; R v Houlton [2000] NSWCCA 309
R v Williscroft [1975] VR 292DECISION: See para 101
IN THE COURT OF
CRIMINAL APPEAL
60716/96SPIGELMAN CJ
O’KEEFE J
BARR J
Wednesday, 6 December 2000
REGINA v AB [No 2]
JUDGMENT2 O’KEEFE J:
1 SPIGELMAN CJ: I agree with Barr J.
INTRODUCTIONThis matter was remitted to the Court of Criminal Appeal by an order of the High Court of Australia made on 9 September, 1999. The order directed this Court to deal with the matter in accordance with the reasons given by the High Court ( AB v The Queen (1999) 198 CLR 111). The decision to remit the matter to the Court of Criminal Appeal was by a majority of the High Court and the effect of that Court’s order has been the subject of argument before this court.
BACKGROUND
3 The appellant is now aged 49 and has been in custody since his arrest in the United States of America on 15 August, 1995. On 8 November, 1996 he was sentenced in the District Court to a head sentence of 18 years with a minimum term of 13½ years in respect of sixty seven sexual offences committed by him against fifteen children who had been under his care on various occasions between 1976 and 1987. At the time of committing the offences the appellant was a teaching Brother in a religious order of the Catholic Church and taught in various schools which the children in respect of whom the offences were committed, attended. He ceased to be a member of the religious order in 1991.
4 The appellant left Australia in 1989 after two complaints had been made about him to the police at Campbelltown. His departure can properly be characterised as flight because it would appear that he was aware of the complaints against him and that his decision to leave Australia was as a consequence of his knowledge of those complaints.
5 The appellant went to the United States of America and Canada, undertook higher studies, obtained employment as a teacher and as a head master, and married. In August 1992 application was made for his extradition to New South Wales to stand trial for thirty six sexual offences against six named pupils the commission of which extended over a three year period from 1984 to early 1987. These offences were later amended and reduced in number to twenty eight.
6 As was his legal entitlement the appellant opposed the extradition, but in the result the Supreme Court of the United States ruled against him and permitted it. In this context it is relevant to note that by virtue of s.42 of The Extradition Act 1988 (Cth), the provisions of The Treaty on Extradition between the United States of America and Australia of 14 May, 1974 and an amending protocol of 4 September, 1990, (together referred to as The Treaty) a person who has been extradited pursuant to The Treaty may not be tried or punished in the country requesting extradition except for:
(a) the offence for which extradition (was) granted …
(c) any offence for which the executive authority of the requested State consents to the person’s … trial or punishment”
7 On his return to Australia in April 1996 the appellant made a confession in relation to the offences for which he had been extradited and in addition co-operated with the authorities by revealing another thirty nine sexual offences against nine additional children who had been in his care and under his charge in the schools at which he was a teacher. Furthermore, the confession extended by an additional eight years the period over which the offences had been committed None of the additional offences formed the basis of his extradition and as a consequence could not have been the subject of charges or trial, other than in accordance with the terms of s.42 of The Extradition Act 1988 and The Treaty.
8 The appellant’s appeal to the Court of Criminal Appeal against the severity of the sentence imposed in the District Court was dismissed by majority (Gleeson CJ and Sperling J; Grove J dissenting). In his dissenting judgment Grove J expressed the view that the sentence imposed by the trial judge was excessive, should be quashed and a discount in the order of 25% allowed. He expressed the view that if the sentence imposed in the District Court :9 At the outset of the hearing of the present appeal two questions were raised: first, which of the judgments given in the High Court in the present matter should this court apply in determining the reference; second, whether this court should deal with the matter solely on the basis of the two factors considered in detail by Gummow and Callinan JJ (supra at 131 para 53) rather than on the basis of the approach indicated by Kirby J, namely that :
“were to remain undiscounted it would virtually have set at nought the subjective case made out on the applicant’s behalf”
ARGUMENTS ON AMBIT OF THE APPEAL
a view that was later quoted with apparent approval by Gummow and Callinan JJ (supra at 130) in their joint judgment in the successful appeal taken to the High Court.
“The entire sentence and not merely that component which concerned post extradition offences will require consideration.” (supra at 152 para 106)
10 The argument advanced on behalf of the Crown was that the joint judgment of Gummow and Callinan JJ concluded by proposing an order that the matter be remitted to the Court of Criminal Appeal “to be dealt with in accordance with this judgment” (supra at 132 para 56). Kirby J agreed with the orders proposed by Gummow and Callinan JJ (supra at 153 para 108). As a consequence, so the Crown’s argument proceeded, this court should look solely at the joint judgment and consider only the two matters dealt with in detail in such judgment.
11 The actual order made by the High Court was that the matter be remitted to the Court of Criminal Appeal of New South Wales “to be dealt with in accordance with these reasons” (at 161 para 133). Such order renders the first argument in support of the Crown’s proposition as to the basis on which the re-sentencing should proceed misconceived.
12 The second argument advanced was that Gummow and Callinan JJ intended that the Court of Criminal Appeal should restrict itself to the two matters dealt with in detail in their joint judgment, namely:
(ii) the waiving of rights not to be dealt with by the requesting State for offences which are different from, and were not included amongst, those on which the extradition was founded.
(i) the desirability and public interest in encouraging the full revelation of all criminality by extraditable persons; and
13 Nowhere in the joint judgment of Gummow and Callinan JJ do those Justices expressly so restrict the basis of consideration by this court. However, the Crown submits that this was the intent of, and should be inferred from, the joint judgment. It supports such an approach by pointing to the fact that Kirby J expressly states (para 106) his view about the role of the Court of Criminal Appeal, namely that it should exercise its own sentencing discretion in the place of the discretion which miscarried in the District Court. He would not have done so, it was argued, unless the inference the Crown asked this court to draw was appropriate.
14 The principle adverted to by Kirby J is one of long standing. It is not in doubt. House v The King (1936) 55 CLR 499 sets out in the clearest of terms that the sentencing function “depends upon the exercise of a judicial discretion by the court imposing” the sentence (supra at 504) and details the bases on which the exercise of such a discretion may be the subject of intervention. Dixon, Evatt and McTiernan JJ unequivocally state that if the case under review falls within the principles for intervention set out in their joint judgment :
“then (the) determination should be reviewed and the appellate court may exercise its own discretion in substitution … if it has the materials for doing so.” (supra at 505).
15 House v The King (supra) has been frequently applied by the High Court. Minister for Aboriginal Affairs v Peko Wallsend Limited (1985-1986) 162 CLR 24 and more recently CDJ v VAJ (1998-1999) 197 CLR 172 and Lowndes v The Queen (1998-1999) 195 CLR 665 are but three examples.
16 In both CDJ v VAJ (supra) and Lowndes v The Queen (supra) Gummow and Callinan JJ applied House v The King (supra). If it had been intended by them that a principle of such longstanding should be departed from in the present case, and that they were intending to depart from it notwithstanding their recent adherence to it, such a departure would be expected to be highlighted. It was not.
17 In my opinion there is no inconsistency between the role of this court as explicitly stated by Kirby J in relation to the ambit of the sentencing discretion on remission to this court on the one hand and its role as envisaged in the joint judgment of Gummow and Callinan JJ on the other. In the part of the joint judgment that analyses the two factors referred to above their Honours are, in my opinion, doing no more than stating the matters which, if decided in favour of the appellant, would result in the appeal being determined favourably to him.
18 Absent any express statement in the joint judgment to the contrary, and having regard to the form of the order made, I am of opinion that, in accordance with well established principle and the express statement of Kirby J, this court is required to deal with the present reference on the basis that the discretion in relation to the sentence to be imposed is not restricted in the manner contended for by the Crown, but that the factors identified in the majority judgments must be taken into account in favour of the appellant and in the manner discussed, when imposing the sentence.19 In the High Court a number of subjective considerations were identified as being of significance in determining the extent of the sentence. They were:
SENTENCE: FACTORS TO BE CONSIDERED
(a) The appellant’s plea of guilty. This had a twofold benefit, first it saved the necessity for a trial; second it obviated the need for the victims to undergo the ordeal that would be likely to be involved for them in a trial in which they had to give evidence and be cross-examined.(b) The fact that the appellant had not re-offended for 10 years. This involved, as a related matter, that he had undergone and completed a rehabilitation program which apparently had been successful.
(c) The expression of remorse by the appellant to the victims.
(d) The co-operation by the appellant with the authorities by admitting the additional offences.
(e) The vindication (by virtue of the plea of guilty) of the truth of the allegations made by the children in question and the importance to them of being so vindicated.
(f) The avoidance of the trouble and expense of a long trial and of possible further extradition proceedings.
(g) The encouragement of full revelation of all criminality, especially in respect of that for which the appellant had not been extradited and in respect of which he was protected from prosecution at the time of his confession.
(h) The waiver by the appellant of his rights under the law of extradition. Such a waiver had a dual significance: first, it saved considerable expense and avoided the possibility of a second extradition application being made, perhaps unsuccessfully, as has occurred in some recent cases of notoriety (see per Gummow and Callinan JJ, supra at 132); second, it was a valuable indicator of true contrition, not to be lightly set aside or heavily discounted on the basis that the case against the fugitive was strong, even overwhelming.
20 Both the confession made after extradition and the waiver by the appellant of his rights under the law of extradition not to be detained or tried for offences on which he had not been extradited were said by the majority of the High Court to be significant considerations, especially since, with one exception, none of the additional thirty nine offences had or would be likely to have come to official notice.
21 Kirby J was of the opinion that the decision by the appellant to waive his legal rights, and confess to additional offences meant that :22 The appellant’s solicitor swore affidavits for both the High Court and this court in which he detailed the problems for, fears of and effect on, the appellant of the strict custody, amounting virtually to isolation - not strictly, but akin to, solitary confinement - involved in his imprisonment. In this context it should be remembered that Kirby J said in AB v The Queen (supra):
“…the appellant was entitled to expect particular and additional consideration from the sentencing judge and the Court of Criminal Appeal.” (supra at 145)
“… it is well recognised in England and in Australia that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of imprisonment.” (supra at 152)
23 In his judgment Kirby J (at 152) referred with approval to R v Lowe (1977) 66 Cr App R 122; R v Davies (1978) 68 Cr App R 319; R v Perez-Vargas (1986) 8 NSWLR 559 and R v Cartwright (1989) 17 NSWLR 243.
24 In R v Lowe (supra) the English Court of Appeal considered the case of a prisoner who had given information to the police which enabled authorities to prevent crime or bring to justice a number of criminals. As a consequence of having done this there was a prospect of danger to the prisoner’s life. It became necessary for him to be confined under circumstances of protection, the conditions of which were, according to the court, “to put it mildly, unpleasant”(at 126). Such a circumstance was regarded as appropriate to consider in relation to the sentence imposed.
25 The English Court of Appeal affirmed the correctness of such an approach in R v Davies (supra). It said that in imposing the sentence:
“We must also bear in mind that a sentence on an offender who has helped the police is one of intense severity in the prison. … a prisoner in Davies position … would have to be subject to solitary confinement … for the rest of his time in jail …” (at 322)
and
“… in deciding what Davies sentence ought to be by itself we must bear in mind that every year he will serve would be the equivalent of 18 months or two years in a happier atmosphere.” (at 322)
Applying this principle the prisoner was held to be entitled to “a substantial discount” (at 322) on his sentence.
26 The law as stated in England in relation to the discounting of sentences for co-operation with the authorities and the consequential need for isolation or solitary confinement of a prisoner has been regarded as part of the law in Australia also.
27 In New South Wales in R v Perez-Vargas (supra) Street CJ (with whom Hunt and Allen JJ agreed) examined the decisions in R v Lowe (supra) and R v Davies (supra) and drew particular attention to the comment in R v Davies concerning the hardships of particular types of custody. Street CJ said that:
“In commenting on the hardships of custody under protection in England, the Chief Justice in Davies case made observations that are equally applicable to the state of custody under protection in this State”. His Lordship said (at 322):
‘We must also bear in mind that a sentence on an offender who has helped the police is one of intense severity in the prison … a prisoner in Davies position in an ordinary prison in this country would have to be subject to solitary confinement … for the rest of his time in jail …’ “(at 563)
28 In R v Cartwright (supra) the Hunt and Badgery-Parker JJ adopted a similar approach to that adopted in R v Lowe (supra) and R v Davies. The court confirmed that in New South Wales weight should be given to the fact that a prisoner who is held under conditions of isolation from other prisoners undergoes special discomforts and such factors should be taken into account in fixing the sentence (at 255). That and the factors of full, frank and effective co-operation with the authorities as well as remorse on the part of the prisoner lead in that case to a discount of 50% of the sentence that would have been imposed in the absence of those factors. The approach was also adopted by Carruthers J (with whom Loveday J agreed) in R v Foster (1992) 25 NSWLR 732 at 736.
29 Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 referred to “the more difficult time which an informer is likely to have during the period of incarceration as a result of having co-operated” (supra at 227) as being a factor relevant to the mitigation of the sentence which might otherwise be imposed. Meagher JA and Hunt J agreed with Gleeson CJ.
30 A similar approach has been adopted in South Australia (The Queen v Golding (1980) 24 SASR 161 and in Western Australia (R v Hayes (1981) 3 A Crim R 286) in relation to persons who inform on their fellow criminals and as a consequence have to be held in special circumstances within the prison.
31 In the light of these decisions the appellant is entitled, in addition to other discounts that may be applicable and appropriate, to a further discount on the basis of his co-operation with the authorities in revealing offences which would not otherwise have come to notice and because of the circumstances of his incarceration. As Kirby J indicated this last mentioned matter is one which might not have been given as much weight as it deserved, suggesting that of itself it calls for some real and measurable weight to be given to it.
32 The District Court Judge who imposed the initial sentences, totalling 18 years with a minimum term of 13½ years, recognised that the total sentence imposed by him may well have been “overly harsh”.
33 Grove J thought it was overly harsh. As he pointed out in the previous appeal to the Court of Criminal Appeal, an examination of the head sentence imposed in the District Court suggests an un-discounted sentence of 24 years. He expressed the view that this was excessive and as already stated his reasoning appears to have found a degree of acceptance in the High Court.
34 Error has been found by the High Court in that two matters to which weight should have been given were not addressed in fixing the sentence. As a consequence this court must exercise its own discretion to fix the sentences. It must determine the whole sentence in the light of the facts and the discounting factors referred to in the High Court judgments which we are directed to apply in determining the sentence.
35 The maximum sentences which could be imposed in respect of the various offences to which the appellant pleaded guilty were :
Section of Crimes Act Offence Description Number of offences Maximum penalty (years) s 61D (1A) Sexual intercourse without consent on child under 16 by a person in authority 7 12 s 61D (1) Sexual intercourse without consent on child under 16 6 10 s 61E (1A) Indecent assault upon a child under 16 by a person in authority 7 6 s 61E (1) Indecent assault upon a child under 16 17 6 s 81 Indecent assault (male) 22 5 s 61E (2) Act of indecency 7 2 s 78Q (1) Act of gross indecency 1 2 36 The objective considerations relevant to the offences weigh heavily against the appellant. The gravity of his offences was of a very high order. The number of offences committed was considerable, the period over which they were committed, long. The victims were young and vulnerable. In many instances the effect of the offences upon them has been quite extreme and on-going. The offences were committed by a person who was in a position of authority and trust. The circumstances of the offences were deplorable. They were demeaning and degrading of the children involved and in a number of instances likely to have an adverse effect on other children who, although not direct victims, were in the class rooms at the times some of the offences were committed. The appellant should have been a role model for the children. He was a member of a religious order, teaching in schools to which the children had been sent by their parents so that they would be raised in an atmosphere in which Catholic beliefs and values were taught to them both expressly and by virtue of the conduct of those who were their teachers. All of these objective factors mark the matter out as one calling for a substantial sentence. Subjectively, in the appellant’s favour, is the fact that the majority of the offences was revealed voluntarily by him in circumstances in which he was not bound to do so and in respect of matters which, with one exception, would not otherwise have come to attention of the authorities. Furthermore, although the period of time over which the total number of offences was committed was some eleven years, the voluntary revelations by the appellant accounted for eight of those years.
37 The nature, number and circumstances of the crimes to which he pleaded guilty and the time over which they were committed leave no doubt that the matter must be treated over all as a very serious case. Having said that, however, it should be remembered that in no case was there penile penetration nor any physical violence offered to any of the victims. The absence of such factors, in my opinion, denotes the crime as not being such as to call for the maximum sentence possible, but rather a high proportion of such a sentence.
38 A similar, but not identical, case is that of Ridsdale (1995) 78 A Crim R 486. The nature of the offences, their number, the number of victims involved, the period over which they were committed and the status of the prisoner made that an even more serious case than the present. In Ridsdale the prisoner was a Catholic priest. The offences included five counts of buggery involving four different young boys. Two of the counts were representative and in one instance involved anal penetration once a month for nearly two years. There was also a count of attempted buggery as well as multiple counts of gross acts of indecency and indecent assault. The total number of charges against the prisoner was forty six, including the representative counts. The period over which the offences were committed was 21 years. A sentence of 18 years imprisonment with a non-parole period of 15 years was imposed and not varied by the Victorian Court of Criminal Appeal.
39 The fact that the prisoner was a priest who betrayed the trust of altar boys, the members of his parish under his spiritual direction and the parents who committed their children to his pastoral care, weighed heavily with the sentencing judge. In imposing the heavy sentence he said “nobody else comes to mind but a priest who could achieve that trust”. (supra at 489). The Court of Criminal Appeal in Victoria agreed. This suggests that the position of a priest involves a degree of trust even higher than that of a teacher, even a teacher who is a member of a religious order teaching in a religious school. Furthermore, in Ridsdale the cure or rehabilitation of the prisoner remained unresolved. His prognosis was said to be “a very dangerous and vexed issue”. He still “had a serious and destructive psychosexual disorder” amounting to “a sexual addiction”. He remained a person who should not “be in the company of minors unless accompanied by an adult”. This is in marked contrast to the situation of the appellant who has successfully undergone treatment. In this context I agree with the Chief Justice and Barr J that this appeal should be dealt with on the basis that the appellant is unlikely to re-offend.
40 Notwithstanding the shades of difference that exist between the level of trust reposed in a Catholic priest on the one hand and a Catholic teaching brother on the other, the extent to which the high trust reposed in the appellant was abused was extreme and such as to call for the imposition of a heavy sentence.
41 An undiscounted sentence of 20 years would be appropriate. It is a heavy sentence. But a heavy sentence is called for. The crimes were very serious. The extent of disapprobation by the court on behalf of the community must therefore be great.
42 Having determined the appropriate maximum sentence, it is necessary to look at what is required by the High Court’s order by way of discount and to apply the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623-4 (R v Itamua [2000] NSWCCA 502; unreported 4 December 2000.
43 The majority of the High Court was clearly of the view that no or no adequate regard had been had to the fact that the appellant had confessed upon his return to Australia and had waived his rights in relation to the matters on which he had not been extradited. Gummow and Callinan JJ said:
“The sentencing judge’s remarks do not refer to the public interest in confession and waiver of the appellant’s extradition rights. It does seem to be the case that neither before the sentencing judge nor the Court of Criminal Appeal was the point articulated as clearly as it should have been” (supra at 131)
44 Furthermore, although mentioned in passing, it appeared that the circumstances in which the appellant would be held during his time of imprisonment “might not have been given as much weight as it deserved”. (supra at 152 per Kirby J).
45 The determination of the sentence and the discounts that have been applied to arrive at it should be transparent. As Kirby J pointed out:46 The elements involved in the ultimate sentence should “be plain for all to see” (R v Gallagher (1991) 23 NSWLR 220 at 228 per Gleeson CJ), “be capable of being seen to be substantial” (R v Gallagher (1989) 44 A Crim R 256 at 260 per Grove J). In R v Many (1990) 51 A Crim R 54 the Court of Criminal Appeal (Finlay, Allen and Badgery-Parker JJ) said in relation to discounts that :
“ Pearce v The Queen has been interpreted, rightly in my view, as a ‘call for a greater degree for transparency on the part of the sentencing judge in exposing the manner in which, and the reasons by which, the aggregate sentence is arrived at.’ Judges have long since accepted the burden of adjusting their sentences for various consideration … It is always necessary to look back at the product of such adjustment for the requirement of the principal of totality and other applicable principles of sentencing” ( AB v The Queen supra at 150)
“The public policy which dictates that a person … should be rewarded by a discount of his sentence also demands that such discount should be obvious to all.” ( supra at 70)
47 In some cases it may not be possible to give a specific and separate discount for each consideration in respect of which some discount may be appropriate. However, this is not so in the present case for the reasons set out below.
48 The guideline judgment of Regina v Thomson; Regina v Houlton (NSW Court of Criminal Appeal 17 May, 2000, (2000) NSW CCA 309) states that an accused person is entitled to a discount of 10 - 25% (para 152) for a plea of guilty. The discount to be allowed in respect of the utilitarian value of the plea in the present case was conceded by the Crown to be 25%:
“We would readily acknowledge that (it) is at the very top of any range in relation to the utilitarian aspect alone, that is 25%. We also accept when one moves to the contrition aspect there is a further aspect .”(bold added)
49 The Chief Justice agrees with Barr J that the concession by the Crown was appropriate and that such an allowance should be made in respect of the matters comprehended by Regina v Thomson; Regina v Houlton (supra) I am of opinion that a discount of 25% should be allowed in respect of the plea by the appellant. That plea was entered at the earliest possible opportunity and should, in accordance with the guideline authority attract a discount “at the top of the range.”(supra at para 155)
50 Having referred to the utilitarian factors of plea and assistance to the authorities in the course of later submissions on behalf of the Crown, Senior Counsel for the Crown then said:
“But in addition to that , there are other features of the case, particularly a finding there was contrition attenuated only by factors I have made reference to in the submission.” (bold added)
This submission, combined with that part of the concession referred to in paragraph 47 that is highlighted makes it clear that the concession in relation to the 25% discount did not comprehend the particular features of the case in respect of which an additional discount should be applicable, conformably with the guideline judgment and the reasons of the majority of the High Court.
51 In view of the nature of the order made by the High Court in remitting the present appeal to this court and in the light of the concession made by the Crown and adopted by the Chief Justice and Barr J, it is appropriate to consider what it is that is comprehended by “the utilitarian value” of a plea of guilty. In Regina v Thomson; Regina v Houlton (supra) a specially constituted Court of Criminal Appeal discussed the factors which were encompassed by the phrase “the utilitarian value” of a plea of guilty. That value was seen as separate from considerations such as “remorse or contrition” and “other subjective considerations.”(supra at para 114).
52 The judgment of the court stated:53 The benefits derived by the criminal justice system from a plea of guilty include the avoidance of the need for witnesses to give evidence, particularly victims and their families. This is an even greater benefit in relation to victims of sexual assaults and their families.(supra at para 119) However, this aspect of benefit was not included within the value to be given to a plea of guilty as the following passage makes clear:
“The benefits to the criminal justice system as a whole which flows from a plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or the conduct of the offender. Such benefits flow from an act by the offender that is not directly related to any of the multifarious objectives designed to be served by the sentencing process: deterrents, rehabilitation, punishment, etc. Rather, they are a collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole which require acknowledgment of some character by way of an incentive so that the benefits will in fact be derived by the system. (supra at para 115)
“The aspects of the guilty plea that go to remorse and witness vulnerability are much more closely associated with other factors concerning the circumstances of the offender and of the offence including other evidence relating to contrition, than the element of advantage to the administration of criminal justice. The public interest served by encouraging pleas of guilty for their utilitarian value is a distinct interest. (bold added)
For these reasons I am of the opinion that any general quantitative guideline should focus on the utilitarian advantage derived by the criminal justice system from encouraging pleas of guilty. (supra at paras 122-123)
54 In order to understand what it was that the utilitarian value was contrasted with it is appropriate to go to an earlier part of the guideline judgment in which the following factors were treated separately and in contrast:
· express credit for surrendering privileges, such as extradition rights …
· Discount for assistance …
· Discount for guilty plea.” (supra at para 59)”55 The above examination in my opinion makes it clear that the utilitarian value referred to in the guideline judgment (and the Crown concession which was dependent upon such judgment), does not comprehend a number of matters particular to the instant case which the High Court has in its reasons indicated should be the subject of further or additional discount. That this was the intention and purport of the Crown’s concession is in my opinion also clear from the form of the concessions referred to above.
56 As a consequence, over and above the considerations dealt with in Regina v Thomson; Regina v Houlton are the matters to which particular attention was given by Gummow and Callinan JJ and by Kirby J. These have already been referred to above and should, as the High Court indicated, be given weight. There is then the further factor identified by Kirby J and dealt with both in the English and Australian cases, namely the character of the incarceration of the appellant because of the problems he is likely to encounter within the prison system. Whether the prisoner be an informer, or a sexual offender against young children, is not to the point. The end situation is the same for each category. Each category of prisoner requires special circumstances of imprisonment. The offenders have to be isolated, kept in circumstances of virtual solitary confinement. If the offenders are not so kept (and perhaps even if they are) they will be subjected to threats against their lives, with consequent fear that such threats will be implemented. That fear will not of necessity be removed entirely by special circumstances of imprisonment. This is a factor for which, in accordance with the authorities referred to above and the reasons of the majority of the High Court which this Court is directed to apply, an additional discount should be made.
57 In the light of the concession by the Crown referred to in paragraph 47 and its adoption by the Chief Justice and Barr J, it is possible to give a specific and separate discount in relation to such considerations. That being so conformably with authority, it is appropriate to do so. Transparency is thereby maintained.
58 In my opinion a further reduction of 10% on the already discounted sentence should be allowed for these factors. Although such a further reduction may be thought to be smaller than the cases suggest should be allowed, it should be seen in the context of the sense of proportionality which needs to be maintained between the seriousness of the offences committed on the one hand and the total sentence to be imposed in respect of those offences on the other.
CONCLUSION
59 I am of opinion that the un-discounted head sentence of 20 years should be discounted in the first instance by 25%, in respect of the factors considered in the guideline judgment of Regina v Thomson; Regina v Houlton (supra). This reduces the sentence to 15 years. Then an additional discount of 10% of the initially reduced sentence should be allowed in respect of the matters of special application in this case referred to in paragraph 55 results in a head sentence of thirteen years and six months. This is the order of sentence adverted to by Grove J in the appellant’s first appeal to this Court, albeit arrived at by a process of reasoning that is not the same as that of Grove J. It is still a heavy sentence, a significant mark of community disapproval of the crimes giving rise to the sentence and a substantial deterrent for others who might otherwise be disposed to offend. It is a real vindication of the victims. The circumstances of his incarceration mark out such a head sentence as very severe indeed. On the comparison referred to in at least some of the cases this is an effective equivalent of between twenty and twenty seven years of conventional imprisonment.
60 The minimum sentence must also be adjusted. It is necessary to maintain a proper relationship between the head sentence and the minimum sentence. The appellant had no previous convictions. This is a special circumstance relative to the appellant. There is a further factor to consider in relation to the minimum sentence, namely the evidence concerning the apparently successful treatment of the appellant and hence likelihood (as far as anyone can foretell) that he will not commit like offences again. Although rehabilitation appears to have been successful it will be necessary, having regard to his previous scale of offending, to provide for supervision over a period to cement and develop his rehabilitation as part of the community in the context of community living on his release from jail. I am of opinion that the case does not justify a period of parole longer than three and a half years. Such a period should be adequate for the appellant to resume his life as a member of the community whilst under supervision. A minimum term of ten years imprisonment should therefore be fixed. Ten years isolation, with constant concern for his life and physical safety, is a real deterrent not only for the appellant, but also for others in like situations.
ORDERS
61 In the light of the forgoing it will be necessary to recast a number of the sentences imposed by the District Court judge In accordance with the decision of the High Court in Pearce v The Queen (supra) specific sentences will need to be imposed in respect of each of the offences. However, I am aware that Barr J takes a different view in relation to the sentences that should be imposed and that the Chief Justice agrees with his view. In these circumstances I think it sufficient merely to indicate that the sentences should be adjusted to reflect the conclusions set out above and that the non parole period should be fixed so as to expire on 14 August 2005, on which date the appellant should be eligible for release on parole.
62 BARR J: This is an appeal against sentences imposed on the appellant in the District Court. The appellant, whom I shall refer to as AB, pleaded guilty of a large number of sexual offences against children. On 8 November 1996 Freeman DCJ imposed a number of sentences the effect of which was a total head sentence of eighteen years and a minimum term of thirteen years six months. The appellant sought leave to appeal to this Court, which on 7 July 1997 granted leave but dismissed the appeal. The appellant appealed by special leave to the High Court of Australia and on 9 September 1999 that Court allowed his appeal, set aside the relevant order of this Court and ordered that the appeal to this Court be allowed. The appeal was remitted to this Court to be dealt with in accordance with the reasons of the High Court of Australia.
63 The appellant was born on 19 March 1951. He joined the order of Marist Brothers when he was seventeen years old and after a period of training took up teaching in that order. The pupils in his classes were aged between nine and eleven years. For a period of about eleven years between 1976 and 1987, when he was aged between twenty-five and thirty-six years, the appellant committed many acts of sexual intercourse, indecent assault and acts of indecency against his charges. He ceased active teaching during 1987.
64 In August 1989 two of the girls against whom he had committed offences complained about him to the police. He found out about the complaints and left Australia in order to avoid answering them. Between then and his arrest in the United States in 1995 he was on the run in North America. Not long after leaving Australia he undertook treatment for paedophilia and associated personality disorders. He then moved to various localities in the United States and remained for some time under the supervision of those who had treated him. In 1991 he left the Marist Brothers order and obtained employment. He married in 1992.
65 By 1995 the New South Wales Police were aware of complaints by six of the appellant’s former pupils and criminal proceedings were commenced against him, leading to his arrest in the United States and to an application that he be extradited to Australia in order to face the outstanding charges. The applicant unsuccessfully defended those proceedings and was eventually returned involuntarily to New South Wales.
66 The laws governing the extradition of persons from the United States of America to Australia are given effect to by the Extradition Act 1988 (Commonwealth). A regulation issued under that Act incorporates the protocol which gives effect to the Treaty on Extradition between Australia and the United States of America. S 42 of the Act contains a number of provisions, one of which is that when an extraditable person is surrendered by a country to Australia that person shall not, unless having first left Australia or having had the opportunity to do so, be tried for any offence that was committed before the surrender of that person other than those for which extradition is granted. The section contains exceptions to this general rule, including where the surrendering country consents to the person’s being so tried. So the United States of America had the right to expect that the appellant would not be tried for any offence committed before his extradition, other than those contemplated by the charges in respect of which he was extradited, without its express consent. That rule gave rise to a corresponding right in the appellant not to be tried for any other such offence: AB v The Queen (1999) 198 CLR 111 per Gummow and Callinan JJ at 128-129, 131 and 132, or a privilege to object to prosecution for any other such offence: AB v The Queen per Kirby J at 141-144.
67 The appellant was extradited on charges relating to thirty-six separate acts pertaining to six complainants. The charges were eventually amended and reduced in number to twenty-nine, a recasting permitted by a further provision of s 42, since they related to the conduct contemplated in the thirty-six original charges.
68 When he arrived in New South Wales the appellant sought legal advice and then decided to plead guilty to the twenty-nine charges he was facing. He also told his solicitor that he had committed a large number of offences against nine other complainants and expressed his desire to tell the police about them and be charged and punished in due course. With one possible exception, the police knew nothing at all about those offences.
69 The appellant’s solicitor advised him that he could not lawfully be charged with the additional matters but his instructions were firm, and that led to correspondence between his solicitor and the officer in charge of the police investigation and a representative of the Office of the New South Wales Director of Public Prosecutions. In order to permit the appellant to be lawfully charged with the additional offences it was necessary for the United States of America to waive its rights under the Extradition Treaty, so approaches were made to that country through the Commonwealth Attorney General’s Department. It was necessary for the United States Government to be informed about the appellant’s attitude towards the diplomatic request. Accordingly, his solicitor furnished an affidavit on his instructions setting out a number of matters including an assertion that he wished to waive his rights and to enter pleas of guilty to charges relating to the nine further complainants. In due course the United States of America gave its consent and the fresh charges were dealt with together with the original ones. The original charges came to be referred as “the pre-extradition proceedings” and the fresh charges as “the post-extradition proceedings”.
70 Neither the learned sentencing judge nor this Court dealt with the value for sentencing purposes, other than as evidence relevant to contrition, of the appellant’s voluntary revelation of the facts of the post-extradition offences and of his waiver of his rights not to be charged with them. It was the failure to give weight to the utilitarian value of those two matters as affecting the sentences that satisfied the majority of the members of the High Court of Australia that the sentencing proceedings had miscarried. See the judgments of Gummow and Callinan JJ at 131-132 and of Kirby J at 141-145.
The jurisdiction of this Court
71 A preliminary issue arises as to the power of the Court in dealing with the appeal. It was submitted on behalf of the Crown that the task of the Court was confined to a consideration of the two matters identified in the judgments of Gummow and Callinan JJ and Kirby J to which I have referred. Assuming this were possible, the Court would have to weigh the utilitarian value of those matters in the light of the sentences as they stood and make any corresponding deduction the Court thought appropriate.
72 The Crown relied on a portion of the joint judgment of Gummow and Callinan JJ to support this submission. Having observed that the public interest in the disclosure of unknown offences and the waiver of extradition rights were relevant matters to which the sentencing court should have had regard, their Honours said at 132 -73 Their Honours went on to propose that -
The Court of Criminal Appeal should reconsider the appeal to it taking into account these matters.
74 Kirby J said at 152, 153 -
The matter should be remitted to be dealt with by the Court of Criminal Appeal in accordance with this judgment.
The established error of principle requires, in my view, that the sentence imposed upon the appellant by Judge Freeman should be reconsidered. This will mean that the entire sentence and not merely that component which concerned the post-extradition offences will require consideration.
75 His Honour agreed with the orders proposed by Gummow and Callinan JJ.
76 The judgments of McHugh and Hayne JJ do not touch upon this matter since their Honours would have dismissed the appeal.
77 The relevant order of the High Court was as follows -
Remit the matter to the Court of Criminal Appeal of New South Wales to be dealt with in accordance with these reasons.
78 It was submitted that of the overall minimum term of thirteen years six months, only three years six months related to post-extradition offences and that the Court’s consideration was therefore confined to what weight the additional facts should have in relation to that minimum term.
79 I do not think that the Crown’s submission is made out. I do not understand the words of Gummow and Callinan JJ as intending to confine this Court in the factors it might consider in re-sentencing after a finding of error. I see no conflict between the remarks of their Honours on the one hand and Kirby J on the other. The invariable position in an appeal to this Court against sentence is that if error is shown to exist, the Court must exercise its discretion and sentence afresh. It cannot fulfil that function by any partial approach. All the factors relevant to every part of the sentencing must be considered afresh. In any event, it would be quite impossible in my view to deal partially with an appeal of this kind. Several features of the case entitled the appellant to a lesser sentence than he would have otherwise received, for example the utilitarian value of his pleas of guilty and his strong prospects of rehabilitation as well as the new matters the Court must now take into account. It is well recognised that it is inappropriate to attempt to quantify separately any or all of the multifarious elements involved in the determination of a final sentence as though sentencing were a process by which mathematical formulae were applied in order to produce a single correct answer. See, for example, the remarks of Hayne J in AB v The Queen at 156-157 and Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227-228.
80 I conclude that, error having been found, it is the duty of this Court to reconsider the whole sentence by reference to all the evidence and all the principles which may bear upon it. This approach is consistent with the requirement of Criminal Appeal Act 1912 s 6(3), which provides as follows -81 See also the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505 -
On an appeal under section 5(1) against sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
82 The statements of the complainants were before the learned sentencing judge together with psychological reports dealing with the effects of the offences upon them. The facts are best described by the following extract from his Honour’s remarks on sentence.
If the judge acts upon a wrong principle … then his determination should be reviewed and the appellate court may exercise its own discretion in substitution in his if it has the materials for doing so.
The objective facts
I will deal chronologically with the offences. Accordingly the first victim comes within the post-extradition proceedings, a child whom I will identify only as CPA. On matter 2710/1, the first of the charges with which I am dealing, this child was, in about Easter of 1976, taken by the prisoner to his room in the monastery to look at a model train set by which device I should add the prisoner induced a number of his victims into the premises where he could assault them. He pushed this child onto the bed and fondled his genitals and then he pulled down his shorts and underpants and touched him on the penis.
Charges 2 and 3 relate to the same victim. They involved touching the child and indeed masturbating him until he experienced his first orgasm which one might expect would have been an awesome experience for a child of that age in the circumstances in which he came to puberty. These charges, 1 to 3, involving that child ….. are but representative of a number of occasions upon which the prisoner abused that boy.
The next victim, whom I will identify as SA, was in the prisoner’s fifth class in 1977. Having isolated the child in the classroom at lunchtime, the prisoner undid the child’s pants, pulled out his penis and fondled it. There was an interruption. The prisoner told the child to go downstairs and not tell his parents or anyone.
The following charges 5, 6 and 7 also involve the child SA and include mutual masturbation, although 6 and 7 carry with them, to my mind at least, aggravating elements in that the prisoner was then dealing with another child whom I will refer to as HM. So that he was encouraging the boys to masturbate each other in his presence.
Charges 8 and 9 refer to the child HM. They involve the prisoner requiring the child to masturbate him, the prisoner, and the reverse, him manipulating the child…. It is with this child, it is said, that the prisoner went so far as to have them both naked and to lie the child on the bed so as to engage in what can only be called simulated sexual intercourse.
The next victim to whom reference may be made was LM. He was abused by the prisoner in August, September and October in 1976. It involved the prisoner masturbating the child. The child was sufficiently strong-minded as to decline to reciprocate when the prisoner requested him so to do.
Charges 13 and 14 relate to boys who in 1979 were in the prisoner’s class and may be referred to as SM and WP. They are charges of indecently touching those children.
TW was a victim in 1979. Again this is a series of charges which are but representative of a wholesale assault upon this child’s innocence continuing, he says, about twice a week over that year. Not for the only time the prisoner introduced the subject of masturbation by referring the child to a book and then by rubbing his penis through his clothes and encouraging him to try that activity at home by himself.
The next day, according to the facts underpinning charge 16, he undid the child’s clothing and masturbated him. Charges 17 and 18 were again an occasion when the prisoner used two boys together encouraging them to masturbate each other and him whilst he did the like to them. He had taken them to his room and caused them all to be totally undressed and this was the first occasion on which TW had seen the results of a male climax. He speaks of his shock and horror and well may he do so.
Charges 19 to 22 again involve an occasion when the prisoner had two boys each masturbating each other and doing the like to him. Although this is not chronologically accurate, to continue dealing with the post-extradition offences the next victim is CM who was in the prisoner’s class in 1983 and again the prisoner introduced the child to the subject of masturbation by showing him a book explaining it.
Within a couple of days of this introduction the prisoner had the child masturbate him. Charge 24 is a similar activity later and charge 25 relates to mutual masturbation occurring again when the child had been directed to come back and assist his teacher.
Charge 26 relates to the following year, although involving the same victim, and again illustrates the extent to which the prisoner ingratiated himself, not only into the life of these children at school but in their home life as well. He had been invited by the child’s unsuspecting parents to dinner. Afterwards, he took the child for a drive upon which mutual masturbation occurred. The power and authority of the prisoner could have been no more dramatically illustrated than the fact that he was welcomed and probably lionised in the child’s own home so that there was no sanctuary from his interference at all. The child was required to fellate the prisoner on this occasion.
Charges 27 and 28 involve mutual masturbation and fellatio. Charge 29 occurs three years later when the prisoner came back, having left the town of Lismore in which these things had earlier occurred, and visited the child when he was then 15. He took him out in his car to a fire track in the bush and initiated mutual masturbation. To have come back looking for this victim years after he had passed from his purview strikes me as being a sinister element.
Charges 30 to 42 involve the victim to be referred to as BR. They occur in 1985. Again the book on masturbation is produced as a prelude. Again shortly after the child was masturbated. Some of the charges, notably 31, involve the child beginning to reciprocate by rubbing the prisoner’s penis outside his clothes. By charge 34 mutual masturbation had again been established. Charge 35 relates to involvement of two boys again, as does 36, as does 38. Charge 40 relates to the child's 11th birthday when the prisoner promised him a birthday present and proceeded later to take him in his car and masturbated him until the child experienced his first ejaculation. Charges 41 and 42 (sic, apparently a mistake for 31 and 32) again refer to mutual touching and each of those counts involve this victim.
I turn now to the pre-extradition proceedings which are identified formally as Registry No. 68752/1 through to, but not comprehensively involving, /59, 68752 /57 and /13 occurred in Lismore in 1985 and involved the victim to be known as AG. Again the child was in fifth class where the prisoner was his teacher. He lured the child to the monastery with the device of the train set. He touched the child on his penis on the outside of his clothing. And then /13, he took the child to his room, took off his clothes and tried to undress the child telling him that a couple of his classmates had been in this position before and asking why would he not co-operate. With considerable bravery in a child so young, the child not only declined but endeavoured to leave the room. To his dismay he found that the door was locked. Nonetheless he managed to unlock it and leave.
68752/58 involving the victim DS …..She was called out by the prisoner to his desk at the front of the class where he rubbed his hands up and down her leg on her bottom on the outside of her underpants. That child complained to one of the Sisters of the school but apparently nothing was done. In 1984 the prisoner dealt with two young girls to be referred to as LH and RL. As was the case with the victim DS, he began by calling these children out to his desk in front of the classroom and touching them there. Indeed, /56 and /53 refer to an occasion on which he had both girls simultaneously in front of the class inserting his finger into their vaginas and demonstrating even more forcefully than ever before his complete mastery of the situation; their total helplessness and powerlessness that he was able to do these things with impunity in the presence of, although not perhaps in the sight of, all of their classmates.
The victim LH is concerned as the victim in charges /56, /55, /51, /45, /46, /47 and /48.
They represent a litany of misbehaviour beginning with the prisoner promising the girls that he would take them to Luna Park. The prisoner enticed them into a situation where he could place his finger in the vagina of LH. He had her touch his penis which was erect. At the theatre of the school after watching some production he directed her to remove her pants, rubbed her vagina and guided her hand in manipulating his erect penis until he ejaculated. He engaged in a comparison between the two little girls telling one that while she was a good kisser the other girl was a better kisser, but at least was better at the other things. He committed cunnilingus on this child.
As to the victim RL on /53, the occasions when the two girls were being penetrated digitally in front of the class ….. On the other counts, which briefly summarised involve /50, the prisoner requiring the child in the school playground to insert her hand through the pocket of his pants and touch his naked penis …...
68752/52 and /49 relate to an occasion when he summoned the girl to the classroom after the school fete. I regard these actions as having sinister connotations as well because the girl’s parents were working at the school fete and it was in the full knowledge, of course, that he was not obliged to account for the girl’s absence from home and not likely to be interrupted by her parents that he took her into the classroom and inserted his finger in her vagina and required her to masturbate him.
In the later years of 1986 and 1987 the remaining victims may be referred to as the boy CA and girl AT. The boy who is the subject of /28 found the prisoner rubbing his penis, outside his clothing admittedly, but again in front of the class, reinforcing, as I said earlier, the power of the prisoner.
/40 and /41 involve occasions when the child was ordered into a storeroom and masturbated. It is said that these again are only representative counts involving a long series of sexual misbehaviour by the prisoner against this child whom he endeavoured to encourage to engage in sexual intercourse with the remaining victim AT, indeed in front of the class. /39 involves the child being at the monastery after watching a movie, helping the prisoner and having his penis rubbed outside his clothing, as does /42. On each occasion the child declined to reciprocate those sexual acts.
The final victim is AT, a girl used by the prisoner for his sexual gratification over a period from the middle of 1986 to early 1987. /1 refers to an occasion when he called her out in front of the class and fondled her outside her underclothing and on that I would impose 12 months imprisonment from August 2006. /34 relates to again touching outside the clothing.
/27 ….. On this occasion the prisoner had taken the child in his car from her home down a bush track and inserted his finger into her vagina. /28 involves a similar activity except, having taken her in the car to the same bush track and after inserting his finger in her vagina, he had her masturbate him to the point of ejaculation.
The counts referred to as /29 involve similar activities, as do /31, although this was at the monastery and involved the prisoner performing cunnilingus upon the child after having her masturbate him whilst he digitally penetrated her.
/25 involved digital penetration after swimming at the beach at Wattego and again similarly in /33. /24 refers to an occasion on which the prisoner took the girl to her home and finding no member of the family present, undressed her, placed her on the kitchen bench and performed cunnilingus on her in her own home. There was nowhere any of these children could be safe from this predator.83 Further undisputed detail illustrates how serious some of the individual offences were. The first example is of one of the female complainants. The following facts were admitted by the applicant in his record of interview. The child was in the applicant’s class. When she was ten or eleven years of age, he commenced first to call her to front of the classroom where he fondled her legs. He then progressed to fondle the outside of her vagina through her underpants. That led to his placing his fingers inside her vagina. On other occasions he had her take his penis in her hand and masturbate him to ejaculation. On another occasion he kissed her on the breasts. He put his tongue inside her vagina. Such intimacy occurred at a place called Woodlawn where he parked the motor car. He took the child there on a number of occasions. He visited the child’s home quite a lot. Prior to August of the first year of these occurrences, such intimacy occurred once a fortnight or once a week. Later, it was once a fortnight or once every three weeks, extending into the following year.
84 According to a report by a graduate social worker, the child remembered fear as being the dominant emotion during the period of abuse. In adolescence, the child developed uncontrollable intrusive thoughts about the abuse. She became estranged from her parents, fearing that they would blame her for what had occurred. Her scholastic performance declined. She now associated sex with pain. She still felt the need to control everything in her life and avoided situations where she might feel out of control.
85 The second illustration relates to a male complainant. In his record of interview, the applicant admitted abusing this child on several occasions, including having the child masturbate him. Further detail is provided in a statement of facts which was tendered in evidence before his Honour. The applicant had begun by showing the child a book about masturbation. Intimacy progressed from the applicant fondling the child’s penis to mutual masturbation in a storeroom, including such activity in company with another male child, mutual masturbation in the applicant’s own room, on a holiday camp and in a holiday house at Byron Bay. This course of conduct commenced when the boy was ten.
86 In this case there is also a report by a graduate social worker. The child reported having felt confused and ashamed at the time. He had thought he would not be believed if he disclosed what occurred. For some nine years after these events, he endeavoured to suppress the memory. He felt numb, cut off from the world. He experienced intense feelings of anger, with irritable outbursts often directed at his family and friends. His tolerance to stress was low. He still suffered from intrusive thoughts. This continued to interfere with potential sexual relationships.
87 In the course of his account of the objective features of the offences, his Honour made some more general observations which were as follows:88 Objectively, the offences individually and collectively were very serious indeed. They involved fifteen children, who suffered lasting damage. They were carried out over a period of about eleven years. They were carried out by a mature predator on little children. In order to commit and repeat them the appellant took advantage not only of his power as an adult over little children but of the special trust that had been placed in him not only as a teacher but as a religious brother with moral as well as religious obligations towards his charges. Nothing less than a very long total sentence could give proper recognition to the need publicly to condemn the offences and deter others from offending in like manner.
I pause to observe that this particular tactic (showing the child an illustration in a book relating to masturbation) seems to me, even in the context of the overall criminality of the prisoner’s behaviour, particularly reprehensible. He was there to teach these children but not to accelerate their sexual maturing by introducing them to onanism in an apparent oblique reference to his school masterly role.(T)hat (asking the child to keep encounters a secret) is a recurring theme, not only in the history of this prisoner, but in all who molest children. They impose secrecy upon their victims and in this prisoner’s case he was able to do so with particular effect having regard to the position in which he stood to these children. He was not only an adult and their teacher but of course their spiritual guide.
The totality of the prisoner’s control over these children is easily understood (a reference to molesting a child in front of the class). As is observed in one proof: If he told me to pick up a pencil, I picked up a pencil. If he told me to take my pants down, I took my pants down. If he told me to do this, I did this. It was entirely appropriate, as Mr Walsh said in the opening of his submissions, that the prisoner should acknowledge that he was in a position of absolute trust and the breach of that trust is the more stunning because of the awe and respect in which the children not only held him but were entitled to hold him.
It is not difficult to understand that the effect of activities such as these in those circumstances (another reference to molestation in the sight of classmates) has been on these victims, as on the earlier ones, to produce deep-seated long-lasting, if not permanent, psychological damage which has had a pervasive effect upon their entire life. Indeed the evil done by this prisoner is not confined to each of these many victims individually. Each of them has suffered sorely at his hands. Each of them has been warped and distorted in personal development. Each will face prolonged difficulties in interpersonal relationships and in the assessment of their own self-worth. But beyond that, like ripples in a pond, the damage has spread to their peers, to their families and to those with whom they would seek to arrange relationships.
Each of them (the children involved) has suffered sorely at his hands. Each of them has been warped and distorted in personal development. Each will face prolonged difficulties in interpersonal relationships and in the assessment of their own self-worth. But beyond that, like ripples in a pond, the damage has spread to their peers, to their families and to those with whom they would seek to arrange relationships.
I am pleased that the prisoner had prolonged psychosexual analysis, treatment, counselling, support and supervision in America. I am much less pleased to find that none of these children had anything like the same opportunity to redress the wrongs which he has done to them and to those to whom they belong. Some of them have turned out, understandably, to be rebellious. Nearly all of them have suffered academically.
The subjective case
89 The appellant presented a strong subjective case. His Honour described it as powerful. The appellant had been treated for his paedophilia and other disorders and in the opinion of one of his attending medical practitioners, Professor McConaghy, he had responded well. Professor McConaghy remarked on the appellant’s apparently successful marriage then of six years’ standing and the development of his work and social relationships with adults. He thought these things consistent with the appellant’s report that he no longer had a sexual interest in children, since in Professor McConaghy’s experience most paedophiles were incapable of forming satisfying social or sexual relationships with adults. Whereas paedophiles who reoffended did so within three years or so, the appellant had not done so for over nine years and this, together with the other features I have mentioned, made Professor McConaghy think that the appellant was very unlikely to reoffend.
90 His Honour expressed some reservation about that opinion. It appeared that the appellant himself had been abused as a young person and that that was a matter he had not disclosed to Professor McConaghy until a late stage. However, it is apparent from Professor McConaghy’s evidence that he was well aware when expressing his opinion of the sexual abuse of the appellant himself and appreciated the late stage at which the appellant had revealed information about it. I do not consider that his Honour was entitled to accept the evidence other than at face value.
91 Although by the time of sentence the appellant had not reoffended for ten years, his Honour observed that up until then he had been living in a different atmosphere, facing the investigation of the charges, which circumstances were likely to cause him to modify his behaviour. The implication was that his Honour considered that there was a real risk of the appellant’s re-offending. He concluded that only actual punishment would serve to deter the appellant from further offending. As Sperling J pointed out in the judgment of this Court of 7 July 1997 that was not a conclusion supported by the evidence.
92 I think that this appeal should be dealt with on the basis that the appellant was unlikely to reoffend.
93 His Honour accepted that the appellant was contrite, as evidenced by the way he had changed his life following medical treatment and had pleaded guilty to the original charges and by the way he had volunteered the post-extradition offences and pleaded guilty to charges brought in respect of them, as well as his generally co-operative attitude towards the investigating and prosecuting authorities. His Honour thought that the appellant’s defence of the extradition proceedings showed that contrition did not merit the highest ranking. In my view his Honour’s assessment was appropriate.
94 His Honour also recorded the appellant’s entitlement to leniency for the utilitarian value of his confessions and pleas. The time and expense of long and possibly difficult trials were saved and the complainants were spared the ordeal of giving evidence.
95 As well, the appellant is entitled to consideration for the value to the community of his volunteering those offences and of his having waived his rights not to be charged with them before having the opportunity to leave Australia, which would have entitled and enabled him to defend any further extradition proceedings. The community has thereby been saved substantial trouble and possibly great expense.
96 In Regina v Thomson; Regina v Houlton [2000] NSWCCA 309 this Court encouraged sentencing courts to quantify the effect of a plea of guilty where appropriate, as it relates to contrition, witness vulnerability and utilitarian values. Particular encouragement was given to the quantification of the utilitarian value of a plea of guilty. The same principle applies to co-operation with the authorities in the various ways that that might happen. Here all the factors I have mentioned are important but particularly the saving of time and expense in trying the appellant on all the charges, the ordeal that the complainants have been spared on all the charges and the saving of trouble and expense that might have been occasioned if the appellant had not waived his extradition rights. I refer to the judgment of Spigelman CJ in R v Thomson; R v Houlton at [124]-[140].
97 The range of discount applicable on account of the utilitarian value on a plea of guilty and co-operation with the authorities on the part of an accused person will vary between ten and twenty-five percent. It was conceded by counsel for the Crown that the utilitarian value of the appellant’s pleas of guilty, his voluntary co-operation and his waiver of his extradition rights concerning the post-extradition offences entitled him to a reduction of twenty-five percent from the sentence which would otherwise apply. I think that the concession was appropriate and I would make such an allowance.
98 Because the appellant is a child sexual offender he will face danger in prison and will have to be kept away from the ordinary prison population. This Court has been told that he is now kept apart even from other prisoners who are on protection. His movements and the access he may have to work and other gaol programmes will therefore be restricted. He is entitled to additional consideration because in the circumstances he will find his sentence harder to serve than it would otherwise be.
99 But for the allowance of twenty-five percent for the utilitarian value of the several features I have mentioned, an appropriate sentence would in my opinion be one of twenty years’ imprisonment with a non-parole period of sixteen years. In arriving at that sentence I have taken into account all other relevant factors, objective and subjective, favourable to the appellant and unfavourable to the appellant. I have adopted the “instinctive synthesis” approach expressed by the Full Court of the Supreme Court of Victoria in R v Williscroft [1975] VR 292 at 300 and approved by the High Court of Australia, for example, in the judgments of McHugh and Hayne JJ in AB v The Queen at [15]-[18] and [113]-[116] and in the judgments of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at [46]. I have also taken into account that in this case there is an overlap between the utilitarian consideration of the features that I have mentioned and other subjective considerations, namely the remorse and contrition which are thereby demonstrated to exist: see R v Gallagher per Gleeson CJ at 227-228 and Hunt J at 233-234; R v Thomson; R v Houlton per Spigelman CJ at [70] -[71].
100 A reduction of twenty-five percent from the appropriate sentence produces a head sentence of fifteen years and a non-parole period of twelve years. No lesser non-parole period would be sufficient to reflect the objective gravity of the offences. I do not think that this case justifies a longer period of parole than three years, which ought to be adequate to enable the appellant to settle into the community under supervision.
101 In order to achieve this result it is necessary to recast only the sentences passed for offences committed on the complainants referred to by his Honour as the boy CA and the girl AT. I would leave all the other sentences undisturbed. I propose the following orders -
Quash the sentences passed with respect to the boy CA and the girl AT and sentence the appellant in lieu as follows -Complainant CA
On charge 68752/38, imprisonment for one year six months commencing on 15 August 2003 and expiring on 14 February 2005.
On each of charges 68752/39, 68752/40, 68752/41 and 68752/42 imprisonment for one year commencing on 15 August 2003 and expiring on 14 August 2004.
Complainant AT
On each of charges 68752/1, 68752/27 and 68752/34 imprisonment for one year commencing on 15 August 2003 and expiring on 14 August 2004.
On each of charges 68752/24, 68752/25, 68752/29, 68752/31 and 68752/33 imprisonment for two years commencing on 15 August 2003 and expiring on 14 August 2005.
On charge 68752/28 imprisonment for seven years commencing on 15 August 2003 and expiring on 14 August 2010.
Non-parole period
Fix a non-parole period of four years in respect of the sentence on charge 68752/28 and declare that the appellant will be eligible for release on parole on 14 August 2007.
Decline to fix a non-parole period for the remaining sentences.
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