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R v Brian Joseph Spillane

R v Brian Joseph Spillane

Case [2016] NSWDC 337 29 July 2016

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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

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”
The offender was born in 1943 and is a former Catholic priest. He married on 26…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brian Joseph Spillane

Details

AGLC: R v Brian Joseph Spillane [2016] NSWDC 337
Case: [2016] NSWDC 337
Decision Date: 29 July 2016

CaseChat Overview and Summary

In the matter of the Queen versus Brian Joseph Spillane, the offender was convicted of one count of indecent assault and two counts of act of indecency, all of which occurred between 1992 and 1996. The case was heard in the Supreme Court of Queensland. The primary focus of the trial was to determine the appropriate sentence for the offender, considering the historic nature of the offences and the sentencing range established by the relevant statutes and case law.

The legal issues that the court had to address included the appropriate ratio between the head sentence and the non-parole period for the offences, as well as the cumulative sentence for all the offences combined. The court had to consider the principles of proportionality and deterrence in sentencing, while also taking into account the offender's background, the gravity of the offences, and the need to protect the community.

The court determined that the appropriate ratio between the head sentence and the non-parole period for each offence was 2:1, and that the cumulative sentence should reflect the totality of the offences committed. The court also considered the offender's age, his previous criminal history, and his prospects for rehabilitation when determining the appropriate non-parole period. Ultimately, the court sentenced the offender to an aggregate term of imprisonment of 3 years, with a non-parole period of 1 ½ years, to commence on 29 May 2020. The non-parole period ends on 28 November 2021, and the offender is to be released on parole on 29 November 2021, subject to the previous sentences.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Brian Joseph Spillane [2016] NSWDC 337

Most Recent Citation

R v Slattery [2017] NSWDC 373

Cases citing this decision · 1 of 1 shown

R v Slattery
[2017] NSWDC 373 Para 127

…. The parties accepted that the relevant practice at the time was an additional term of around a third and a half. [36] 36. R v Brian Joseph Spillane [2016] NSWDC 337 at [72]…

View all 1 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Hunter
[2022] SASCA 136

…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] NSW…
R v Pemble
[2015] NSWDC 168 Para 52

…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…
R v Tuala
[2015] NSWCCA 8 Para 33

…n 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 agr…
JM v R
[2014] NSWCCA 297 Para 79

…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…
R v MJB
[2014] NSWCCA 195 Para 33

…xpected 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)…
BJS v R
[2013] NSWCCA 123 Para 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…
R v Pogson
[2012] NSWCCA 225

…14] 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 Categ…
DF v R
[2012] NSWCCA 171

…ncing 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, Distr…
PWB v R
[2011] NSWCCA 84 Para 65

…007] 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…
Flynn v R
[2010] NSWCCA 171 Para 81

…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…
Kenny v R
[2010] NSWCCA 6 Para 51

…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…
Wakefield v R
[2010] NSWCCA 12 Para 81

…ing 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…
R v RLP
[2009] VSCA 271 Para 56

…ggests 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…
R v Robert Borkowski
[2009] NSWCCA 102 Para 41

…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)…
Dousha v R
[2008] NSWCCA 263

…ases 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,…
RWB v R
[2008] NSWCCA 93 Para 65

…erence 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…
R v Murrin
[2008] NSWDC 192 Para 52

…gard 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…
AJB v R
[2007] NSWCCA 51 Para 65

…on 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…
R v MJR
[2002] NSWCCA 129

…am; 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) M…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 41

…itarian 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]…

Legislation cited in this decision · 6

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A(2), 21A(2)(g), 21A(3)(g), 21A(3)(i),... 9 mentions (from Para 25)
Crimes Act 1900 (ACT)
61E(1), 61E(1A) 3 mentions (from Para 1)
Interpretation Act 1987 (NSW)
30(1) 2 mentions (from Para 62)
Sentencing Act 1989 (NSW)
5(2) 2 mentions (from Para 70)
Parole of Prisoners Act 1966 (NSW)
1 mention
Probation and Parole Act 1983 (NSW)
1 mention (from Para 70)

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.