R v Brian Joseph Spillane

[2016] NSWDC 337

District Court

New South Wales

Medium Neutral Citation:	R v Brian Joseph Spillane [2016] NSWDC 337
Hearing dates:	17 June 2016 and 15 July 2016
Date of orders:	29 July 2016
Decision date:	29 July 2016
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	(1) The offender is convicted, and sentenced to an aggregate term of imprisonment of 3 years, with a non-parole period of 1 ½ years, to commence on 29 May 2020; (2) The non-parole period ends on 28 November 2021; and (3) The offender is to be released on parole on 29 November 2021, subject to the previous sentences.
Catchwords:	SENTENCE – historic offences – indecent assault and act of indecency – sentencing range – appropriate ratio between head sentence and non-parole period – cumulative sentence
Legislation Cited:	Crimes Act 1900 (NSW) ss 61E(1) and 61E(1A), Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A , 21A(2), 21A(2)(g), 21A(3)(i), 21A(3)(g), 30(2), 44(1), and 53A(2)(b) Interpretation Act 1987 (NSW) s 30(1) Probation and Parole Act 1983 (NSW) Sentencing Act 1989 (NSW) s 5(2)
Cases Cited:	AJB v Regina [2007] NSWCCA 51 BJS v R [2013] NSWCCA 123 Bradbery v Regina [2008] NSWCCA 93 DF v R [2012] NSWCCA 171 Dousha v R [2008] NSWCCA 263 Flynn v R [2010] NSWCCA 171 JM v R [2014] NSWCCA 297 Kenny v R [2010] NSWCCA 6 PWB v R [2011] NSWCCA 84 R v BJS, (Unreported, District Court of NSW, Woods DCJ, 27 September 2013) R v Borkowski [2009] NSWCCA 102 R v Hunter (1984) 36 SASR 101 R v MJB [2014] NSWCCA 195 R v Moon (2000) 117 A Crim R 487 R v Murrin [2008] NSWDC 192 R v Pemble [2015] NSWDC 168 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 R v RLP [2009] VSCA 271 R v Thomson; R v Houlton [2000] NSWCCA 309 R v Tuala [2015] NSWCCA 8 Regina v MJR [2002] NSWCCA 129 Wakefield v R [2010] NSWCCA 12
Category:	Sentence
Parties:	Regina (Crown) Mr Brian Joseph Spillane (Offender)
Representation:	Counsel: Ms E Wilkins SC (Crown) Mr G Walsh (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Greg Walsh & Co (Offender)
File Number(s):	2008/55729
Publication restriction:	(1) Non-publication order with respect to the name of any of the complainants or anything tending to identify them; and(2) Non-publication order with respect to the name of the offender’s wife or any of the children or anything which may identify her or them.

Judgment

1. Mr Brian Joseph Spillane has pleaded guilty to three offences of aggravated indecent assault contrary to s 61E (1A) of the Crimes Act 1900 (NSW) [1] , each carrying a maximum penalty of 6 years imprisonment. He has also pleaded guilty to one count of indecent assault contrary to s 61E (1) of the 1900 Act, carrying a maximum penalty of 4 years imprisonment.

   1. Hereinafter referred to as the “1900 Act”

2. The offender was born in 1943 and is a former Catholic priest. He married on 26 September 2004 and was dismissed from the congregation on 13 October 2004.

3. The offender commenced his seminary training in 1960 and was ordained in 1968. Thereafter, he was appointed to St Stanislaus College, [2] an all-male Catholic high school for day and boarding students.

   2. Hereinafter referred to as the “College”

4. Between 1968 and 1978, the offender held various positions at the College. He left in 1978 to take up positions in other parishes and interstate. In 1984, he returned to the College and remained there until the end of 1991. During that period he held the position of College chaplain.

Count 1

5. The first complainant, F, was born in 1972 and between 1986 and 1989 attended the College as a boarder. During that period, the offender was the chaplain and lived at the College. He was in a position of authority in relation to F.

6. On an evening between the end of Year 8 in 1986 and early part of Year 9 in 1987, F was walking around the College upset because he was home sick and missing his family who at the time, were living overseas. On one occasion, F walked past the door to the offender’s bedroom and decided to knock on it. The offender’s room was near the Year 12 dormitory.

7. The offender answered the door, and saw that F was crying. The offender invited him in and spoke to him for five to ten minutes about why he was upset. They stood in the middle of the room talking.

8. The offender then prayed for F, giving him a “bear type” hug. The offender then bent over and pressed his lips against the F’s lips and kissed him for five to six seconds. The kiss was not an open mouth kiss but with lips pressed against each other (Count 1). After the offender released F from his hold, F left the room. After that incident, F did not go back to the offender for anything including prayer sessions. F was about 14 years old at the time and he did not tell anyone about the incident.

Count 2

9. The second complainant, G, was born in 1974. He started boarding at the College for Year 8 in 1987, when he was 13 years old. At this time, the offender was the chaplain and lived at the College. G was under the authority of the offender. G was the smallest boy in the class and was the subject of constant teasing. When G started to play up in class because of the teasing, he became subject to demerits and detention. As part of the discipline, G had to meet the offender for counselling.

10. After attending a number of counselling sessions, G began to feel at ease with the offender and felt comforted when with him. The offender gave G Milo, lollies and money.

11. One day, during the second half of 1987, G was “flogged” by a group of students. G was upset and went and saw the offender in his room. G knocked on the door, and the offender told G to come in and sit down, and to tell him what had happened. The offender patted the G’s knee. G sat on the offender’s lap. The offender spoke to G and said a prayer.

12. The offender then moved G, so that G was straddling his leg and facing him. The offender put his hands on either side of the G’s face, and said “You know I love you. You can come to me at anytime.” The offender then kissed G on the mouth (Count 2). G felt strange and uncomfortable but did not know at the time that it was wrong.

Count 4

13. The third complainant, H, was born in 1971. He was a boarding student at the College between 1988 and 1989. At this time, the offender was the College chaplain and lived at the College. H was under the authority of the offender.

14. In 1988, H attended the offender’s private room by himself, sometimes for confession and on other occasions, the offender had asked him to go there.

15. On one occasion, H went to the offender’s room for confession. The offender told him that he had slept with a married woman. H thought that the offender was trying to get his confidence. H told him something that he had done, and became emotional. The offender approached H and hugged him tight and close. The offender then kissed H on the lips (Count 4). H had his mouth shut hard.

16. When the offender finished, H was crying, but the offender would not let him go. The offender wanted H to lie down on his bed for a while until he felt better. H laid on the offender’s bed and the offender walked over to the bed where he was lying. When the offender did this, H sat up. H was very scared. The offender then spoke to H in a calm, soothing voice.

17. H went to the offender’s room on more than five other occasions, sometimes because the offender made him a sacrament. On these occasions, the offender hugged H and kissed him on the mouth. The offender told him that what happened in the room, stayed in the room, and that it was confidential.

Count 7

18. The fourth complainant, I, was born in 1976. He attended the College from 1988 – 1993, for Years 7 – 12. He was a boarder at the College between 1988 and 1989. In 1989, the offender was the chaplain and lived at the College. The complainant, I, was under the authority of the offender at all relevant times. In 1989, when in Year 8, the complainant attended Sunday mass at the College chapel. During the mass, the offender gave a sermon about “self-abuse.” The offender said that masturbation was an abuse of God’s gift of sexuality. Sometime after this sermon, the complainant went to see the offender for confession. The complainant sat down in front of the offender who was sitting very close to him, face-to-face. The following exchange then occurred:

OFFENDER: “How long has it been since your last confession?”

I: “Two weeks”

OFFENDER: “[Complainant I] what sins have you committed in the last two weeks?”

I: “Swearing, fighting, lying.”

OFFENDER: “Anything else?”

I: “No. I don’t think so.”

OFFENDER: “Have you been abusing God’s gift of sexuality?”I: “Yes.”

19. The offender then immediately sat closer to the complainant so that one of his knees was between the complainant’s legs. The offender then put his right hand on the complainant’s forearm, and started rubbing his left leg with his other hand. While the offender was touching the complainant, the following exchange occurred:

OFFENDER: “Where did you masturbate? How did you do it? What were you thinking of?”

I: “It happened in my bed in the Year 8 dorm at nights after lights out. I was thinking of my girlfriend at the time”

OFFENDER: “Is she a pretty girl? Does she love you? What’s her name?”

20. The complainant does not remember what he said, but he told the offender all about his girlfriend at the time. The offender remained close to him and continued to touch his leg and arm, before giving him penance and completing the confession. The complainant did not tell anyone about the incident.

21. Two weeks after, the complainant went to confession again, and the offender sat very close to him, face-to-face. The following conversation took place:

OFFENDER: “How long has it been since your last confession?”

I: “Two weeks”

OFFENDER: “[Complainant I] what sins have you committed in the last two weeks?”

I: “Swearing, fighting, lying”

OFFENDER: “Have you been masturbating again?”

I: “Yes”

OFFENDER: “Were you thinking of your pretty little girlfriend while you did this?”

I: “Yes. I was thinking of my girlfriend.”

22. The offender rubbed the complainant’s leg and moved his hand down and touched the complainant’s penis through his shorts (Count 7). The offender said: “Does it make you feel hard here while you think about her?”

23. The complainant sat back in the chair and tried to pull back as much as possible, because he did not want the offender to touch his penis. He did not answer the offender as he felt shocked and he did not know how to react. At the end of the session, the offender gave the complainant his penance. As the complainant got up to leave, the offender got up and followed him to the door and said: “Remember, you can tell me anything. You can trust me.” The offender pulled the complainant towards him and hugged him, and put his head down and kissed the complainant on the left cheek. The offender kept hold of the complainant’s left hand as he opened the door, and said: “Don’t forget to come and see me next week and tell me about it.” The complainant left the room.

Objective seriousness

24. The solicitor for the offender acknowledges that the offences were serious because of the fact that they occurred in the setting of a boarding school, and involved a breach of trust by the offender to the victim. Nevertheless, it was submitted that as the acts themselves did not involve intrusive forms of sexual assault, they were very much towards the lower end of objective seriousness. In particular, it was submitted that there was no suggestion that the offender had applied force, or that the conduct was aggravated by the use of violence or use of other acts which involved overt sexual gratification. Further it was submitted that there was no suggestion of the use of pornography or breaches of that type. [3]

    3. Written Submissions dated 16 June 2016 at [48]

25. The Crown acknowledges that for the offences involving complainants F, G and I, questions of the complainants’ vulnerability and age and the fact that the offender was in a position of trust, were not factors of aggravation in line with the provisions of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [4]

    4. Hereinafter the “1999 Act”

26. The offence against F was not a casual contact in that it involved the pressing of the lips for a number of seconds. The complainant would not go back to the offender and did not tell anyone about it. He approached the offender in circumstances where he was clearly upset and crying, and where his parents were absent and he was homesick.

27. The offence against G arose in circumstances where G was upset after he had been assaulted by other students and was seeking support. By earlier conduct, the offender had made the complainant feel at ease with him. The offender’s positioning of G on his lap, accompanied by touching either side of the G’s face and stating: “You know I love you” and “You can come to me anytime,” were acknowledged as making G feel strange and uncomfortable.

28. In relation to H, the complainant was aged 17 at the time and the offence was brought under s 61E(1) of the 1900 Act. Nonetheless it is relevant, pursuant to s 21A(2) of the 1999 Act, that the offender abused a position of trust which he had in relation to H who because of his age was still vulnerable and as a boarder, did not have immediate parent support. H attended upon the offender in circumstances when he was emotional. The offender attempted to obtain his confidence by informing him that he had slept with a married woman. The complainant was clearly distressed, and the offender approached him and hugged him before kissing him on the lips (but at the time, the complainant had his mouth shut). The conduct was not isolated as H attended upon the offender on more than five other occasions and the offender also hugged and kissed H on the mouth. The offender also told H that what happened in the room “stayed in the room” and that it was “confidential.”

29. In relation to the complainant I, the offender used his position to raise the topic of masturbation in the context of performing his pastoral duties, before rubbing the complainant’s leg and moving his hand down to touch his penis through his shorts. He further attempted to contextualise his conduct through conversations about the complainant’s girlfriend and sinful behaviour. The complainant clearly tried to pull back and resisted the offender touching his penis. He did not know how to answer, and felt shocked.

30. Each of the offences occurred in circumstances where the offender was a significant authority figure in respect of the complainants, second only to their parents. The offender was not only a religious leader but someone whose task was concerned with their personal welfare.

31. The offences are individually at the lower levels of seriousness. There were no threats or significant force applied by the offender. By themselves the offences at one level, appear opportunistic or impulsive although the incidents in Count 7 were not isolated. However, there was some behaviour involved in Count 2 (provision of Milo, lollies and money) and Count 4 (revelations about a previous sexual encounter) and 7 (religious sermonising) which I consider was aimed at developing a greater bond between the offender and his victims. In each case for different reasons the complainant was troubled when the offender saw them. Cumulatively the offences are serious because of the number of offences and victims occurring in a context of other offending with which I discuss below and which the offender has already been sentenced.

Victim impact statement

32. Pursuant to s 30(2) of the 1999 Act, a victim impact statement consisting of a report of David Nielssen, clinical counsellor, in respect of F was put forward by the Crown.

33. No submission was made by the Crown that the statement supported a case of aggravation under s 21A(2)(g) of the 1999 Act. The damage done to victims of indecent assault is acknowledged and the provision of this material is important in reminding the Court of it. The contents of the statement appear to accord with the expected consequences of the offending conduct. [5]

    5. R v Tuala [2015] NSWCCA 8 [75] – [78] (Simpson J with Ward JA and Wilson J agreeing); R v MJB [2014] NSWCCA 195 [49] – [53] (Adamson J with Hoeben CJ at CL and Fullerton J agreeing)

34. It is noteworthy that after the incident F avoided the offender, having already been in a distressed state when he visited him for pastoral care reasons.

Plea of guilty

35. The offender was arrested on 22 May 2008 in relation to the allegations made by the various complainants. He was charged in relation to the offences against Complainant G and released on bail. On 2 September 2008, the offender was arrested in relation to allegations made by further complainants. He was charged in relation to the offence committed against Complainant H, and released on bail. On 9 December 2009, the offender was committed to trial. On 1 April 2010, an indictment was filed in the District Court of NSW, including the charges in relation to Complainants G and H, and ex officio counts involving offences against Complainants F and I. A trial was due to commence on 24 August 2015. A separate ten count indictment (including the present matters) was then filed on 4 September 2015 and the Crown has accepted the offenders guilty pleas in the four matters referred to in full satisfaction of the ten counts. Pleas of guilty were entered on 4 September 2015.

36. On 19 April 2012, the offender was sentenced by Finnane DCJ in respect of nine other counts of indecent assault, in respect of which a jury returned verdicts of guilty on 29 November 2012.

37. The victims in those cases were girls. Finnane DCJ imposed an aggregate sentence totalling nine years, concluding on 29 November 2019. A non-parole period of five years was set, commencing on 30 November 2010, and concluding on 29 November 2015.

38. An appeal against conviction and sentence was heard by the NSW Court of Criminal Appeal, but it was unanimously dismissed. [6]

    6. BJS v R [2013] NSWCCA 123

39. The offender subsequently was found guilty by a jury in respect of eight offences involving nine boy victims, which occurred at the same College as the present case. The period involved was February 1984 to May 1989. Woods DCJ sentenced the offender on 27 September 2013, and imposed an aggregate sentence of nine years with a non-parole period of five years, commencing on 29 November 2015, and expiring on 28 November 2020.

40. As has already been observed in the intervening period the offender faced two trials resulting in conviction. The Crown concedes that the offender is nevertheless entitled to a small discount for his plea of guilty.

41. The plea has resulted in a saving of resources. However, I note that saving witnesses from giving evidence does not affect the utilitarian discount. [7] In accordance with the principles summarised in R v Borkowski, [8] I accept that a discount of around 12.5 % is appropriate.

    7. [2000] NSWCCA 309 [119] – [123] (Spigelman CJ with Wood CJ at CL, Foster AJA, Grove and James JJ agreeing)

    8. In particular, principles 8 – 9, in R v Borkowski [2009] NSWCCA 102 at [32] (Howie J with McCllelan CJ at CL and Simpson J agreeing)

Remorse

42. In R v Thomson; R v Houlton, [9] Spigelman CJ stated:

“[118] The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition and, often, not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse.”

9. [2000] NSWCCA 309

43. The Crown submits that the offender has shown no remorse or insight into his offending. It refers to a report by Dr Olav Nielssen dated 15 June 2016, prepared following an interview with the offender on 14 June 2016. The Crown draws attention to the fact that in that report, Dr Nielssen was informed that the offender justified his conduct on the basis that his motive was to show affection to his victims.

43. The offender’s solicitor does not advance a case of mitigation on grounds of remorse. Even acknowledging that by his plea, the offender has spared the complainants the ordeal of having to give evidence and endure a trial, I find that remorse in terms of s 21A(3)(i) of the 1999 Act has not been demonstrated.

Rehabilitation

45. The offender’s solicitor however, does draw attention to the report of Dr Nielssen as demonstrating that the offender poses little risk of reoffending within the terms of s 21A(3)(g) of the 1999 Act. On this issue under the heading “Opinion,” Dr Nielssen states-

“Despite facing further charges, [the offender] is not a recidivist offender and would be very unlikely to commit any further offences in the event of his eventual release, because of his age and the very aversive effect of imprisonment.”

46. The Crown submits that Dr Nielssen does not appear to have been given a full history of the offending, including the time frame and further, that it is not uncommon for elderly offenders to come before the Court. The Crown submitted that the offender had poor prospects of rehabilitation given the persistent and continuing nature of his offending over a number of years, and his lack of remorse, and continuing attempts to make excuses for inexcusable behaviour.

47. In R v Pogson; R v Lapham; R v Martin, [10] McClellan CJ at CL and Johnson J at stated:

“[124] By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person’s thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen: Vartzokas v Zanker at 279 (King CJ).”

10. [2012] NSWCCA 225

48. Giving due weight to the effect of imprisonment and the offender’s age as reducing the prospect of reoffending my view as to rehabilitation accords with His Honour Woods DCJ, who when earlier sentencing the offender remarked:-

“Furthermore, his intransigence causes me to conclude that his prospects for future rehabilitation to be limited. This offender’s criminal history suggests a guarded view should be taken as to his prospects of future rehabilitation.” [11]

11. R v BJS (Unreported , District Court of NSW, Woods DCJ , 27 September 2013) at 15

Adverse publicity

49. The offender’s solicitor submits that there has been a considerable degree of adverse publicity about the offender’s conduct, and he has been referred to in the most pejorative of terms by media reporting. However, orders have been in place dating back to when proceedings took place before Woods DCJ in 2013, precluding publication for the sentencing proceedings and the identification of the offender and/or the College.

50. The Crown submits that this is not a significant factor in the present case as there has been no adverse publicity in this matter due to the effective operation of the Court orders; and further, in previously dealing with this issue, the Court has not seen this factor as one entitling the offender to any mitigation of sentence.

51. It has not been suggested that any public shame in this case was so significant as to damage the offender physically or psychologically. [12] Otherwise I note, as has been previously observed with this offender, [13] that public denunciation of his conduct is one of the proper purposes of punishment and I am not satisfied that I am required to, or should have regard to any additional public denunciation as a factor causing me to mitigate a proper penalty.

    12. Kenny v R [2010] NSWCCA 6 [49] (Howie J with Johnson J agreeing)

    13. R v BJS, (Unreported, District Court of NSW, Woods DCJ, 27 September 2013) at 18

Hardship to the offender

52. It is submitted that as the offender is a member of a religious order convicted of sexual assault offences upon children, it is a factor that should be taken to into account. Attention in this regard is drawn to the decisions of Berman DCJ in R v Pemble [14] and Murrell DCJ (as her Honour then was) in R v Murrin. [15]

    14. [2015] NSWDC 168

    15. [2008] NSWDC 192

53. The evidence on this issue is contained in Dr Robert’s report of 10 April 2012. That report refers to the offender’s personal request for limited association, restrictions on out of cells hours and capacity to engage in recreational and other activities. [16] There is no evidence which contradicts this and it is to be assumed that it continues to represent the offender’s circumstances. In my view it is appropriate to take this matter into account.

    16. Exhibit 1, Tab 6

54. The offender has also drawn attention to the fact that Dr Nielssen has found a diagnosis of depressive illness associated with the offender’s imprisonment and separation from his family, which would best be described as a form of “grief reaction.” Various testimonials submitted on behalf of the offender referred to the hardship caused by the separation of the offender from his family, and in particular from his wife and children. That is a factor which undoubtedly applies to most persons in custody with families.

55. However, this is not evidence of hardship of the type that would entitle the offender to any mitigation of sentence.

Age

56. The offender is aged 73, and under the terms of his current sentence, he will be eligible to be released on 28 November 2020, when he will be 77. A medical history obtained by Dr Nielssen suggests that he is otherwise in good health. In considering the impact of age on sentence, the Victorian Court of Appeal stated in R v RLP [17] :-

    17. [2009] VSCA 271

“[39] We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.

(1) The age and health of an offender are relevant to the exercise of the sentencing discretion.

(2) Old age or ill health are not determinative of the quantum of sentence.

(3) Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.

(4) It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.

(5) Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.

(6) Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.

(7) Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence (citations omitted).”

57. The Court in that case was dealing with an offender who was 77 years of age and committed a series of serious sexual offences over a protracted period of time.

58. In R v Hunter, King CJ stated:

“The difficult aspect of the Respondent’s case is his age. A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial portion of the period of life which is left to him. It may be when that consideration is borne in mind, it can be said that the sentence of 5 years imprisonment, which at first sight seems very lenient for the respondent’s criminal conduct, is nevertheless within the scope of the judge’s sentencing discretion. I am unable to feel the same way, however, about the non-parole period. In fixing a non-parole period, a sentencing judge must direct his attention to the minimum period for which the offender must, if the purposes of punishment are to be served, remain in prison. He must then turn his attention to the factors which bear upon the particular offender is a candidate for parole. The Respondent is undoubtably an excellent candidate for parole. There is every reason to believe that he would not offend again. It is necessary, however, at the time required to be spent in prison be adequate punishment for the crime committed. The basic concepts of justice which underlie the criminal law require that the punishment be fairly proportionate to the crime in accordance with prevailing standards of punishment.”[18]

18. (1984) 36 SASR 101, 103 (King CJ)

59. I bear in mind these principles to the extent that they apply. However it needs to also be also borne in mind that the late disclosure of the offences has enabled the offender to live earlier years in a life of freedom rather than be incarcerated.

Prior good character

60. A number of testimonials have been presented on the offender’s behalf.

61. Whilst the offender is otherwise of good character in my view little weight can be attached to this, given the extent of the offending over a long period of time.

Sentencing range

62. The offender contends, and the Crown does not dispute that the sentences to be imposed should be consistent with the range and legislative policy at the time of offending. [19] However, the Crown also draws attention to s 44 of the 1999 Act. Although the provisions in that section were not in operation at the time of these offences, the Crown contended that by reason of s 30(1) of the Interpretation Act 1987 (NSW), an earlier version of s 44 of the 1999 Act applied with respect to the determination of sentences for offences committed before 1 February 2003. In this form, s 44 read as follows:-

    19. R v Moon (2000) 117 A Crim R 487

44 Court to set term of sentence and non-parole period

(1) When sentencing an offender to imprisonment for an offence, a court is required:

(a) firstly, to set the term of the sentence, and

(b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.

(5) Schedule 1 has effect in relation to the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule.

63. The Crown further submitted that notwithstanding the application of this provision, the Court should, in line with the sentencing regime applicable at the time of the offences, adjust the non-parole period by way of a finding of special circumstances.

64. I accept that this approach is correct. The question remains as to what is the appropriate ratio between head sentence and the non-parole period.

65. The solicitor for the offender submitted that the accepted non-parole period imposed was customarily between one third and a half of the head sentences. In this respect, reliance was placed on the decision of the Court of Criminal Appeal in AJB v R [20] and Bradbery v R. [21] Reference was also made to a table of cases appearing in R v PWB. [22]

    20. [2007] NSWCCA 51 [36] – [39] (Howie J with Adams and Price JJ agreeing)

    21. [2008] NSWCCA 93 [36] (Mathews AJ with Mason P and Latham J agreeing)

    22. [2011] NSWCCA 84

66. The solicitor for the offender submitted in summary that the Court should follow the approach of the Court of Criminal Appeal in Dousha v R [23] , and R v MJR,[24] noting that Hoeben JA in DF v R [25] observed:-

“[61] … The Crown specifically referred his Honour to the decisions in Dousha and MJR. Unfortunately the Crown largely dismissed the effect of those cases by submitting to his Honour "that it is not possible to discern a reliable sentencing pattern for the period in question". That was not accurate as the cases clearly indicated lower sentences and non-parole periods in which the ratio to the head sentence was between one-third and one-half.”

23. [2008] NSWCCA 263

24. [2002] NSWCCA 129

25. [2012] NSWCCA 171

67. The Crown for its part, disputed the contentions made on the behalf of the offender. It drew attention to the fact that DF v R involved offending during an earlier period, being 1978 to 1979. It asserted that Dousha v R involved a series of offences committed in 1986. Mottram v R it said involved offences between 1972 and 1985 It emphasised that in MPB v R the offences were committed in the late 1970s. These cases it was said were distinguishable from the offences now before the Court which involve offences in the mid to late 1980s.

68. The Crown further draws attention to the sentencing of the offender in relation to offences earlier referred. Woods DCJ indicated that he was involved closely in the drafting of major sexual assault reforms in the early 1980s and was familiar with the pattern of sentencing during that period. His Honour stated:-

“I should note as well, that a non-parole period applicable during that time when most of these offences were committed, would have been perhaps roughly two-thirds of the head sentence, and I take that consideration into account.” [26]

26. R v BJS, (Unreported, District Court of NSW, Woods DCJ, 27 September 2013) at 16

69. The Crown asserts that this approach should be followed based on His Honour’s undoubted experience and bearing in mind that there was no appeal brought.

70. It is important to reflect on the legislative arrangements which applied at the time of the offences. In respect of each of counts 1, 2 and 4 the Probation and Parole Act 1983 (NSW) [27] applied. That Act did not prescribe a statutory ratio between the head sentence and non-parole period. In respect of count 7 which occurred on an unspecified date in 1989 the 1983 Act applied if the offence was before 25 September 1989 but on and from that date s 5(2) of the Sentencing Act1989 (NSW) applied which provided:-

5 Minimum and additional terms

“(2)The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances”

27. Hereinafter the “1983 Act”

71. The Crown’s analysis may have greater force were it not for the fact that the offences in Dousha v R in fact extended beyond 1986. In Dousha, counts 1 – 3 involved offences between April and July 1986. Counts 4 – 5 involved offences between January 1988 and December 1989. Counts 6 – 8 involved offences between April and December 1986. Fullerton J (with Bell JA and Latham J agreeing) stated:

“[35] It is also important to note that the sentence the subject of review in Clare was passed in accordance with the Parole of Prisoners Act1966 where the ratio of head sentence to non-parole period were not prescribed as is the case under the current sentencing legislation. That Act was repealed by the Probation and Parole Act 1983 which commenced on 27 February 1984. No statutory ratio between head sentence and non-parole period was provided for under that Act. Each of the offences that the applicant pleaded guilty to occurred after that date. The Probation and Parole Act was repealed by the Sentencing Act 1989 which commenced on 25 September of that year. It was later repealed and replaced by the present Act. The Sentencing Act introduced a statutory proportion between head sentence and non-parole period for the first time subject to a finding of special circumstances. The applicant’s offences straddle both the Probation and Parole Act and the Sentencing Act, in that counts 4 and 5 allege an indecent assault against SK which occurred between the 2 January 1988 and 31 December 1989 and a sexual assault committed against her between the same dates. Whether or not the offences constituted by counts 4 and 5 were subject to the Sentencing Act or the Probation and Parole Act is, however, entirely a matter of conjecture. In any event, her Honour found special circumstances established in the applicant’s case and varied the statutory ratio for each of the individual offences to a range between 50 and 60 per cent. Even if the Probation and Parole Act was the sentencing legislation in operation, the ratio between head sentence and non-parole period fixed by her Honour was commensurate with what Howie J noted in AJB v R[2007] NSWCCA 51; 169 A Crim R 32 at [39] to be the fixing of a non-parole period between a half and a third of the term of the sentence under the Probation and Parole Act.

…….

[43] In the absence of statistical and non-statistical data her Honour was obliged to adopt the approach which was settled in R v MJR [2002] NSWCCA 129; 54 NSWLR 368. Her Honour was provided with MJR together with a case note of AJB v R [2007] NSWCCA 51; 169 A Crim R 32 which both confirmed the correctness of that approach and developed it.

[44] In both AJB and MJR particular attention was directed to the proper approach to the specification of the non-parole period in cases where the offences were committed prior to the introduction of the Sentencing Act. As Howie J observed in AJB, a non-parole period under the Probation and Parole Act was usually somewhere between a third and a half of the length of the sentence, which might itself be a practice that is sufficient to constitute special circumstances justifying departure from the statutory ratio fixed under the present regime. As his Honour said at [37], this Court ‘should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant.’”

72. In short the Court of Criminal Appeal in Dousha adopted the same range of the non-parole period adopted in AJB of between a third and a half of the term of the sentence but found the range adopted by English DCJ at first instance of between 50 to 60 per cent as commensurate.

73. It follows that I do not accept the Crown’s contention as to the practice in the late 1980s, compared to the early 1980s. In my view the correct approach requires observance of the case law I have referred to.

Accumulation of sentences

74. The Crown submits that the present case involves four additional victims (in the context of totality) and the Crown submits that the sentences in this case should be cumulative on the offender’s present sentence so as to provide an effective punishment in relation to the offending against these additional victims.

75. The offender’s solicitor submits that the Court needs to determine an appropriate overall sentence, applying the principle of “totality.”

76. It is submitted that in the circumstances where the offender has been the subject of two lengthy sentences that the demand for retribution and denunciation is less, as the offender has already suffered significant retribution and denunciation for similar offences. Further it is submitted, that in the context of specific deterrence, the imposition of sentences already of an effective non-parole period totalling 10 years amounts to a very significant personal deterrent of the offender. On this basis it is submitted that the Court should consider mercy when considering whether to extend an already lengthy sentence. The solicitor for the offender further submitted that wholly concurrent sentences would be appropriate, where the sentence for one offence “can comprehend and reflect the criminality of the other offences.” In this context, it was contended that the overall sentence is “proportional” to the overall criminality of the offender. Specifically the Court is asked not to impose a “crushing sentence.”

Determination

77. In considering the purposes of sentencing in s 3A of the 1999 Act, it is important to denounce the conduct of the offender, ensure that he is accountable for his actions and recognise the damage done to the victims and the community, as well as to provide a measure of general deterrence. The prospects of rehabilitation are limited and there is no remorse evidenced. The offences are serious although they are at the lower levels of objective seriousness for offences of this type. The sentencing pattern at the time they took place need to be observed. As indicated the offender is further entitled to a discount on account of his plea.

77. I propose to deal with the matters by way of aggregated sentence. In doing so I am first required to indicate the sentence that I would have imposed for each offence in accordance with s 53A(2)(b) of the 1999 Act. These would be:

1. In respect of complainant F (Count 1) – 12 months

2. In respect of complainant G (Count 2) – 12 months

3. In respect of complainant H (Count 4) – 12 months

4. In respect of complainant I (Count 7) – 1 years and 6 months.

79. Taking account of the principle of totality and the principles set out in JM v R [28] I set an aggregate sentence of 3 years. Pursuant to s 44(1) of the 1999 Act as applied at the time, the non-parole period would subject to a finding of special circumstances be set at three quarters of this sentence. In this case by reason of the sentencing regime in place at the time of the offending, the circumstances of the offender’s period in custody and his age, I find special circumstances and set the non-parole period as one year and six months. The nature of these offences in my view makes this appropriate.

    28. [2014] NSWCCA 297

80. The offender is serving an overall cumulative sentence of 10 years non-parole and an additional term of 4 years. To make the new sentence wholly cumulative at the end of the non-parole period presently being served would further erode the existing overall ratio under s 44(1). On the other hand to make the custodial component wholly concurrent with the term presently being served would fail to reflect the separate criminality involved in these matters.

81. In the circumstances, I decline to find further special circumstances based on this fact. [29] To do so in my view would not mark the criminality of the offences. However in order to meet sentencing objectives I propose to order that the sentence I impose commence on 29 May 2020 for a minimum term to expire on 28 November 2021. This means that the additional term of 1 ½ years from 29 November 2021 would expire on 28 May 2023. During this period the offender would ordinarily be released to parole. [30]

    29. This is consistent with Flynn v R [2010] NSWCCA 171; and Wakefield v R [2010] NSWCCA 12

    30. s 50 of the 1999 Act

82. Effectively however the offender will remain in custody until 28 November 2021 and will thereafter be eligible to be released on parole consistent with his existing head sentence (currently being served) on 29 November 2021. If released to parole on 29 November 2021 he will also be on parole in respect of these offences until 28 May 2023.

REVISION NOTES: On 5 December 2016, DCJ Tupman made the following orders in respect of this Judgment:

1. The previous orders preventing the publication of the accused’s name in relation to the trial proceedings before me, DCJ Woods and DCJ Hatzistergos is hereby revoked;

2. The continuing non-publication order preventing publication of the name of St Stanislaus College, Bathurst in proceedings connected with me, DCJ Woods and DCJ Hatzistergos is hereby revoked; and

3. With the sentence proceedings before DCJ Hatzistergos on 29/07/16 that in any publication of that sentence the following pseudonyms be substituted for those used: A – F; B – G; C – H; and D – I.

Endnotes

Decision last updated: 07 December 2016