R v Cable - [2015] NSWDC 93

District Court

New South Wales

Medium Neutral Citation: R v Cable [2015] NSWDC 93
Hearing dates: 9 March – 19 March 2015; 12 June 2015
Date of orders: 18 June 2015
Decision date: 18 June 2015
Jurisdiction: Criminal
Before: Whitford SC DCJ
Decision:
Paragraph [86]

Category: Sentence
Parties: Regina - Crown
Francis William Cable - Offender
Representation:
Counsel:
Mr Herps – Crown
Mr Robinson - Offender
Solicitors:
Ms O’Connell – Director of Public Prosecutions
Mr El-Choufani – Legal Aid

File Number(s): 2012/393036
Publication restriction: NON PUBLICATION ORDERS

REMARKS ON SENTENCE

There is in place an order prohibiting publication of any material that will identify any of the complainants, or their partners or spouses, with the exception of Mr Skippen and Mr Dunn.
I have endeavoured in these reasons not to use the names of the victims save to the extent permitted having regard to the non-publication orders. Where I have referred to individuals by a pseudonym or as the victim, the boy or the child, I certainly do not intend them any disrespect, by that impersonal reference, but have adopted this course bearing in mind the non-publication order and correspondingly also to avoid any unnecessary discomfort from publishing their names in this quite public context.
On 17 March this year, after a trial conducted before me and a jury of 12, the jury returned verdicts of guilty in respect of all 13 counts on an indictment presented against the offender, Francis William Cable. Those counts related to two complainants, both former students at different schools at which the offender had taught. In respect of the first complainant, the offender was found guilty of 3 counts of indecent assault and 2 counts of buggery. Those offences concerned assaults by the offender in 1962 whilst he was teaching at Marist Bros in Maitland. In respect of the other complainant, the offender was found guilty of 6 counts of indecent assault and 2 counts of buggery. Those assaults were committed whilst the offender was teaching at Marist Bros at Pagewood in 1965.
After those verdicts were returned, the offender pleaded guilty to a further 12 counts, all of indecent assault, on an indictment presented on 19 March 2015. Those offences were committed variously through a period commencing in 1960, when the offender was aged 28, and ending in 1974 when he was 42. They relate to assaults committed on 12 other former students, all likewise young boys, predominantly in their very early teens.
The offender appears today for sentence in relation to the 25 counts I have outlined. In addition, he asks that when I sentence him in relation to certain of those offences that I take into account a further 11 indecent assaults which are contained in 5 separate Forms 1 attaching to specific counts on one or other of the two indictments. The offender has acknowledged his guilt in respect of those offences and I consider it is appropriate and will take them into account in sentencing him for the particular offences to which they are attached. Those 11 additional matters relate, as to some, to four of the complainants named in the second indictment and otherwise to an additional 5 complainants, again all former students of the offender in the 1960’s and 1970’s. I will now summarise the detail the various offences, both those on the two indictments and the form one matters.
I will commence with the trial indictment.
Counts 1 to 5 relate to Victim 1, who was born on the 25th of June 1948. He is one of 6 children. His mother passed away in 1953 when he was only 5 years old. His father struggled to raise him and his siblings. The family was evicted from their home in about 1961. His elder siblings went to live with relatives and the two youngest children were placed into care. In 1962 when he was 13 years old and in Form 2 he and his father moved in to board with a strict Catholic woman who insisted the boy attend Marist Brothers at Maitland for his schooling. The offender was his tech drawing teacher. A couple of weeks into the school year the boy had another student do his homework and the offender found out. The offender made him come to the front of the class and stand still for 5 minutes. The boy was terrified of the offender.
The following week, the offender told the boy to stay back after class, after the other students had left. He was directed to come up to the front of the class, the offender was sitting at his desk and he told the boy to come and stand in front of him, which he did. The offender told him to bend down, which he also did. The offender reached around and placed his hand inside the pants and underpants of the boy and started fondling the boy's penis. The boy tried to get up but the offender smacked his head down and told him not to look. The offender lifted his cassock over the boy’s shoulder, took the boy’s hand and pulled it behind the boy's back. The offender then placed the boy’s hand onto the offender’s erect penis and told him to play with it.
The offender continued to fondle the victim until the offender ejaculated.
This incident was count 1 on the trial indictment. The evidence reveals that this was not an isolated incident, conduct of this character was repeated on several occasions.
On about the fourth time he was told to stay back after class, the offender directed the victim to approach the offender’s desk, told him to turn around and not look at him. The offender placed his cassock over the victim’s head and told the boy to turn around. The offender told the boy to play with the offender’s erect penis. The boy did as he was told because he was scared of the offender. The offender then said to the child "lick my penis, put it in your mouth." The offender was pushing on the back of the victim’s head and pushed his penis into the boy's mouth. This is count 2 on the indictment.
After a short time the offender told the boy to turn around and pull his pants down. The boy did as he was directed. The offender picked the boy up and the boy could feel the offender's penis against his bottom. The offender said something like: "It’s all right, it’s all right, it won’t hurt." He had one hand on the victim’s head and one around his stomach.
The offender then slowly pushed his penis into the victim’s anus. It hurt the boy so much he screamed. The offender continued slowly pushing his penis into the victim’s anus patting his head and saying "it's alright" and "It won't hurt." The boy continued to scream. The offender eventually stopped and told the boy to get out. That night the victim’s anus was bleeding. His father bathed him and urged him not to tell anyone, for fear that they would not be believed in any event, and would be frustrated in getting the boy’s younger siblings out of care. This is count 3 on the indictment. There are five form one matters attaching to this count, the details of which I will relate in the course of setting out the matters on the plea indictment.
Some weeks later the offender again told the boy to stay back after class, after everyone else had left. The offender told the boy to turn around and face the desk. The offender then put his cassock over the boy’s head and told the boy to turn around and play with the offender’s penis. The boy did as he was directed. The offender then said to the boy "Lick it", or "put it in your mouth". The victim again did as he was directed for a short time. This is count 4 on the indictment.
The offender then told the boy to turn around and pull down his pants, which he did. The offender then had one hand around the boy’s waist and the other on the back of his head. The offender then placed his penis into the boy’s anus. The victim screamed, begging the offender to stop. Eventually the offender stopped and told the boy to get out. The victim said he felt his backside was wet as well as bleeding. This is count 5 on the indictment.
Counts 6 to 13 on the trial indictment relate to offences committed against Victim 2, who grew up in Kingsford with his parents, and two sisters. His family was religious and attended an Anglican Church in Kingsford. His uncle was Catholic, and agreed to pay the boy’s school fees if he was sent to a Catholic school. In 1964 he commenced high school at Marist Brothers, Pagewood. He first met the offender in 1965 when he was in 2nd form and aged only 12. The offender was in charge of discipline at the school and also taught the boy science.
One Saturday at the beginning of the school year in 1965, the offender organised a science excursion to Little Congwong Beach at La Perouse. About 10 boys attended.
All of the boys and the offender wore speedos. The offender called the victim over to look at something in the water. The offender grabbed the boy under the top part of his arms and pulled him close. He then rubbed the boy up and down his body. The victim felt the offender's erection pushing into his body from his chest to his groin as he was lifted up and down. This continued for about 20 seconds. This is count 6 on the indictment.
About a week later the offender arranged another excursion to the same beach. The victim did not want to go but his father insisted he should, so he went. After having been at the location for about 10 minutes, the offender told the boy to follow him around the rocks to look at the rock formations, which he did. They came to a secluded spot. The offender pulled down his speedos exposing his erect penis to the boy. The offender told the boy to open his mouth. The boy refused. The offender hit the boy about the head and told him to do what he was told. The offender then forced his penis into boy’s mouth. The boy tried to close his teeth and the offender said "Don't you bite." The offender was holding the back of the boy’s head and pushed his thumbs into the boy’s eye sockets to prevent him from biting. The offender said something like "suck on it". The boy did as he was told for a short while before he started to gag and was coughing. The offender then stopped. The offender said "Don't you tell anyone or you will be locked up. They won't believe you, you have the mark of the devil on you and I need to get the devil out of you and that's how I have to do it." The boy was crying and agreed not to tell anyone. When the boy returned home he looked in the mirror to see if he had a mark. He was terrified by what the offender had said. He thought he had the mark of the devil on his face. This incident is count 7 on the indictment.
The following week at school the offender saw the boy in class and said he wanted to see him after school in the office downstairs where the public address system was located. That afternoon the boy went to the office. The offender was there alone. The offender closed the door and grabbed the boy. The offender had unbuttoned his habit a few buttons. The offender put his hand over the boy’s mouth and nose. The offender then put his hands on the boys head so that his thumbs were in the boy’s eyes. By this means the offender forced the boy to open his mouth so he could insert his penis. He told the boy to suck his penis. The offender ejaculated into the boy's mouth and told the boy to swallow it. The offender then told the boy this would get the devil out of him. He said "You won't say anything to anyone, you are not Catholic and you have the mark of the devil on you, you'll be out of the school and a disgrace to your family, you are evil, people will be ashamed of you and you'll be locked up." The boy assured him he would not say anything and was allowed to leave. This was count 8 on the indictment. The evidence reveals that this was not an isolated incident and that the offender abused the boy in the same way on numerous other occasions.
On another occasion, the offender called the boy to the office after school. The boy begged him not to do anything to him. The offender said: "You'll do what you're told because I can do what I like because you are not a Catholic and you have no say in anything". The offender then made the boy remove all of his clothes. The offender then put his penis into boy’s mouth and made him perform oral sex on the offender until the offender ejaculated. This is count 9 on the indictment.
On the same day, and immediately following the previous offence, the offender started to fondle the victim’s penis. The offender then tried to insert a finger into the boy’s anus. The offender inserted his finger a short distance and the boy started crying as it was hurting. The boy screamed out and begged to be allowed to go. The offender put his hand over his mouth to gag him and hold him down. The offender spat on his finger and tried again to insert his finger in the boy’s anus. The boy continued to cry and the offender eventually gave up. The victim was terrified. After he left, he went to the toilets to try and clean himself up and spit the stuff out of his mouth, as he described it, before going home. This is count 10 on the indictment.
The following week the offender again called the boy into the office after school. They were alone. The offender told the boy to take off his clothes. The boy stripped naked. The offender then removed his own clothes except for his underpants. The offender then pulled his underpants down and put his penis into the boy’s mouth. The victim said that this went on for about five minutes and then the offender removed a small bottle from his habit and poured something onto the victim’s anus and onto his own fingers. The victim described the substance as an oily based material. The offender then inserted one of his fingers completely into the boy’s anus. This is count 11 on the indictment.
The offender then removed his finger from the boy’s anus, lubricated his own penis and the boy’s anus. The boy became scared and screamed and cried. The offender said "don't worry it won't hurt, turn around and look at the wall." The offender bent the boy over the desk and pushed his erect penis into the boy’s anus. The boy screamed out in pain. The offender punched him in the back and told him to stop yelling. The offender put his hand over the boy’s mouth when he continued to yell, telling him to keep quiet. This continued until the offender ejaculated.
The offender then wiped himself and the boy down with tissues. There was blood on the tissues. The victim said "What have you done to me?" The offender hit him and told him to get dressed. He then said "Remember our little secret." He blessed the boy in Latin before the boy left.
After he was allowed to leave, the victim went to the boys’ toilet and got some toilet paper to wipe himself off and some damp toilet paper to wash the top of his legs where a bit of blood had run down. He then dried himself off and took a heap of toilet paper and packed the wad of paper in his underpants. His anus was very sore and he said he could barely walk it hurt so much. This is count 12 on the indictment, the first offence of buggery against this victim. This was not an isolated offence, there is evidence that similar incidents occurred throughout the rest of 1965 on an almost weekly basis.
On one of the subsequent occasions the boy went to the office after school as directed by the offender. The offender asked the boy to perform oral sex on him. The boy refused and the offender then again had anal intercourse with the victim. This is count 13 on the indictment.
I will turn now to outline the details of the offences on the plea indictment and the various matters on the five Forms one that I have mentioned.
Victim 3 was born on the 22nd of May 1947. In 1960 he started High School at Marist Brothers Hamilton in form 1 and that year first met the offender, who was his class master. Early in the school year, before his father passed away on the 20th of August 1960, the boy was in the regular class room. The offender was the teacher. He was seated at a desk at the front of the class room with the boys facing him at their desks. The offender called the boy up to the front of class. The boy went and stood in front of the offender, with his back to his class mates. The offender then reached across and placed his hand inside the boy’s pants and started to fondle his genitals. The offender's hand was inside the boy’s pants and touching his skin. This continued for a few minutes. The offender talked to the boy throughout the incident. When it stopped the boy went back to his desk. He was confused, he did not know about sex, he did not understand what was happening. He felt embarrassed and scared. This was not an isolated incident, similar acts occurred regularly for the whole of the boy’s first year at school. This is the first count on the second indictment.
The last time that the offender assaulted the boy was shortly before the end of the school year in 1960. It happened in the same manner as usual with the offender calling the boy to the front of the class. The boy went and stood in front of the offender with his back to the class. The offender reached out and placed his hands inside the boy’s pants and started to fondle his penis and scrotum. This is the matter on the form 1 attached to the first count on the plea indictment.
Victim 4 was born on the 30th of January 1948. In 1961 he started in form 1 at Marist Brothers at Maitland. The offender was his teacher for Tech Drawing. This class was held once a week. During 1961, in the early part of the year before winter, the boy attended Tech Drawing classes. He recalls two occasions when the offender called him up to his desk. On each occasion he was wearing shorts and a short sleeved shirt. The offender told him to stand close to him on his right hand side. The offender then used his right hand and ran it up the boy’s left leg and into his shorts. He then fondled the boy on the genitals on the outside of his underpants. He continued to do this for about two to three minutes. The offender continued to talk to the boy throughout the incident. This is count 2 on the indictment.
Victim 5 was raised in the Maitland area with his parents and 3 siblings. He was the youngest child. In 1959 he started at Marist Brothers Maitland Primary school in 4th class. He continued at that school until 6th form. The offender was the sports master at the school from the time the boy was in 6th class. Between October and December 1961 he, that is, the boy, was at Maitland City Baths by himself. He was playing in the water with another boy, not known to him. The offender arrived at the pool and said to the boys "Why don't we play a different game like piggy in the middle." The offender got into the pool with a piece of cloth and explained that when you got the piece of cloth you had to put it down your pants and the other person had to get it. The offender offered to go first. The offender got the cloth and put it in his pants. The victim pulled the cloth, and placed it in his own swimmers. The offender put his hand inside the boy’s swimmers and moved his hand around the boy's genitals grabbing him on the penis and testicles. He then pulled the cloth out. The offender got the cloth and put it down his own pants again and said to the boy "it's your turn to get it." The boy stopped short of putting his hand into the offender's pants but the offender grabbed the boys hand and pushed it into the offender's speedos. The offender's penis was erect. The game went on for about 15 minutes. After the game the boy went to the showers. The offender followed. The boy got in one shower and the offender got into another one. After the shower the offender said "I will dry you off." The offender used the boy’s towel and dried the boy's genitals, grabbing him on the penis as he did so. This incident is count 3 on the indictment. It was an isolated event, so far as this particular victim is concerned.
Victim 6 was born on the 18th of September 1948. He was the youngest of 11 children. His father died when he was 5 years old. His mother was a devout Catholic who attended Church daily. In 1961 he started in first form at Marist Brothers at Maitland. In 1962 the offender was his tech drawing teacher. During 1962 in a tech drawing class the offender called the boy to the front of the room. The boy went and stood beside the offender who was sitting at his desk. It was a desk with a sloped top allowing for tech drawing. The offender put his arm around the back of the boy and into his pants pocket. The offender pulled the boy close and fondled the boy's genitals through his pocket. This is count 4 on the indictment.

Victim 7 was born in 1947. His family came to Australia in 1950 and settled in Maitland. In 1958 when he was 10 years old, he started 4th class at the Marist Brothers Primary School. In 1960 he was in 6th class and had to repeat it as he missed a number of lessons having operations for polio. In 1961 he completed 6th class. In 1962 he started at the Marist Brothers High School at Maitland. The offender was one of his teachers. In 1963 the offender taught him technical drawing. On one occasion at the beginning of second form the boy was sitting in the tech drawing class. The offender used his finger to beckon the boy to come forward. The boy came forward and stood on the offender’s right hand side. The offender’s hand went onto the back of the boy’s leg and up his shorts to where the bottom meets the leg. The boy jumped to one side. The offender told the boy to go and sit down again. This is the first of five matters on a Form 1 attaching to count 3 on the trial indictment.
Victim 8 was born on 11 September 1951. In 1965 he commenced Form 2 at Marist Brothers, St Gabriels at Pagewood. He met the offender in 1966 when he was in Form 3. The offender was the science master for the school and taught science to all years. He was the boy’s class master in Form 4 (1967) and he was captain of the Cadets. He was also involved in coaching swimming and Rugby League. In the first part of 1967 the boy was at the Heffron Park swimming pool with the offender and half a dozen other children doing swimming drills. The boy was at the side of the pool after a session. The other boys had already got out of the pool and were heading to the dressing sheds. The boy was wearing speedos as was the offender. The offender swam underneath the boy and between his legs. The offender came up between the legs of the boy and one of his hands touched the boy on the penis. It was a brief touch. The boy then got out and went to the change rooms. As he was getting changed he noticed that the offender was standing naked beside him. The boy was also naked and about to put on his underpants. The offender grabbed one of the boy's hands and placed it onto the penis of the offender. The offender said "Can you feel it alright Mr…?'. The boy removed his hand. This is count 5 on the indictment.
Victim 9 was born on the 29th of July 1959. In 1971 he commenced High School at Marist Brothers at Hamilton. In 1972 he progressed to 2nd Form and the offender was his class master. In the beginning of 1972 on a summer weekend possibly before school started he was at Bar Beach with friends. When they went onto the beach they saw the offender, either in the water or still on the sand. The boys went into the water and started playing a game of tag or tackle. The offender started to chase different boys in the water as the boys tried to get away from him. The offender caught the victim and when he did so he put his hand on top of the boy's swimmers and cupped his genitals. He then squeezed them. The offender then let the boy go. This is count 6 on the indictment.
Victim 10 was born on the 24th of October 1958. In 1971 he went to the Marist Brothers at Hamilton. In 1972 he started Form 2 at Marist Brothers. His Class master was the offender. On a weekend in February 1972 the boy went to Bar Beach. He met up with a friend, the victim of count 6 just referred to a moment ago. They saw the offender. He was sitting on a towel near the water’s edge. They spoke to him for a short time and then went for a swim. When they went in for a swim the offender followed them. The boy caught a wave and the offender grabbed him. As he did so the offender used one of his hands to grab the boy on the testicles and squeeze them. This caused the boy pain. The offender then let him go. It lasted for 2 to 3 seconds. This is count 7 on the indictment.
Victim 11 was born on the 25th of May 1959. In 1971 he started High School at Marist Brothers Hamilton. He remained at the school for two years then his family moved elsewhere. He first met the offender at Marist Brothers at Hamilton in year 8 in 1972 when he, the boy, was 12 or 13 years old. The offender was his year master. The offender taught the boy religion and technical drawing. He also had to teach the boys sexual education. This was taught one on one in an office. About halfway through the year it was time for the boy to receive his sexual education lesson from the offender. The boy was in the office alone with the offender. The door was shut and they were sitting at the a desk. The offender was on one side and the boy on the other side of the desk. The offender questioned the boy in an invasive way. The boy was embarrassed. After this sex education lesson the offender would start cuddling the boy before or after class whenever he would see him alone. The boy did not consider this unusual. On one occasion about mid way through the year the boy was at school early, about 8:30am. He went to the classroom and was standing at his desk when the offender approached him from behind. The offender gave him a cuddle. Whilst doing so his hands progressed down the boy’s stomach and over his genitals. The offender was talking to boy whilst doing this. The offender had both of his hands on the outside of the boy’s clothing rubbing the boy's genitals. It started gently but got more vigorous. After about 15-20 seconds the boy pulled away. Nothing was said and the boy left the room. The boy felt uncomfortable. He had no real understanding of sex and did not understand what was happening. This is count 8 on the indictment.
Victim 12 was born on the 22 September 1958. In 1971 he started in first form at Marist Brothers Hamilton. In 1972 he progressed to second form. His Class master was the offender. In 1972 the boy went with the school to the Merewether Baths for lifesaving training. The offender was with the boy in the water. The offender was showing him a restraint grip. Whilst he was demonstrating the grip the offender put his hand on the boy’s penis on the outside of the boy's swimmers. The offender then rubbed the boy’s penis with his fingers. He did this for about 2 seconds and then let the boy go. The following day, whilst back at school walking past the classroom, the boy was called into the class room by the offender who was sitting at his desk. The offender said "Yesterday when I grabbed you there, there was nowhere else I could grab. But you didn't seem to mind." This is count 9 on the indictment.
Victim 13 was born on the 7th of September 1956. In 1969 he commenced high school at Marist Brothers Hamilton. He met the offender through school. In 1972 he was in his final year at school when his 4th year science teacher had a few health issues and was away from school. The offender took the science class. The offender walked around the class looking at all the boys’ books rather than sitting at the front of class. This happened over a few lessons. When the offender came to the boy’s desk he had his book out ready. The offender bent over with his face close to the boy’s face. He turned the pages of the boy’s book and whilst doing so caressed his back with his other hand. The offender then slid his hand on the boy’s back and under his belt into his pants. The offender was touching the boy’s bottom. The boy was trying to turn away from the offender. The offender continued to turn pages on the book and make comments. He remained with the boy for a few minutes and then moved on. This is the second Form 1 matter attached to count 3 on the trial indictment.
Victim 14 was born on the 28th of August 1958. In 1971 he started High school at Marist Brothers at Hamilton. In 1972 he progressed to second form. The offender was his class master. The offender also ran the Duke of Edinburgh scheme. In 1972 the boy was at either the Newcastle Ocean Baths or the Merewether Baths in the change room with a number of other boys. The offender was in the change room and was naked. The offender had an erection. On another occasion when the boys were taken to the beach this victim was with another boy. They were in the water at the ocean baths, either at Merewether or Newcastle. Whilst he was standing in the water the offender swam up next to him. The boy felt the offender's erect penis against his leg. The offender said "don't worry" and "this is normal". This is the third Form 1 matter attached to the third count on the trial indictment.
Victim 15 was born on the 30th of December 1958. In 1971 he started first form at Marist Brothers in Hamilton. In 1972 he progressed to 2nd Form. The offender was his home teacher, his science teacher and his religious teacher that year. The offender was also to teach the boys sexual education. During 1972 when the boy was in Form 2 the offender asked him if he wanted to go for a swim at Merewether baths. The boy agreed. There was a small group of boys who went to the baths with the offender. Whilst they were swimming in the pool the offender came up behind the victim and grabbed him. The offender pulled the boy against his body. The boy could feel the offender's penis against his bottom. After a while the offender let the boy go. They then went to the change rooms. The offender was walking around in the change rooms with an erection. He was encouraging the boys to remove their clothes telling them to take their swimmers off. This incident is the fourth Form 1 matter attached to the third count on the trial indictment.
Victim 16 was born on the 18th of March 1960 in Newcastle. In 1972 he attended Marist Brothers at Hamilton and started first form. In 1973 he started second form at Marist Brothers. He was 12 or 13 years old during that year. The offender was his teacher. The offender was a big man and the boy felt intimidated by him. The offender taught the boys sexual education including a one on one session with the offender where the offender asked the boys about wet dreams and masturbation. Early in the year there was an excursion to Bar Beach. The victim recalls being in the change rooms at Bar Beach. The offender came in and started to help him get out of his swimmers. There was no one else in the room at the time. The offender said "what have we got here", and began to fondle the boy’s penis and his bottom. The offender then removed his own penis from his pants and started masturbating. The offender's penis was erect. The offender then took the boy’s hand and placed it onto the offender's penis and started to move the boy's hand up and down. The offender continued doing this until he ejaculated. This is count 10 on the indictment.
The offender would sometimes come to visit the boy’s mother and take the boy for walks down into the bush. On one visit the offender took the boy to the downstairs laundry. The offender got down on his knees and pulled the boy’s pants down. The offender then rubbed the boy's penis and bottom for a short time. The offender then stood up and removed his own penis from his pants. He put his hand on the boy’s shoulder and directed the boy onto his knees. He took the boy’s hand and placed it onto his erect penis. He then let go of the boy’s hand and the boy began to masturbate the offender. This continued until the offender ejaculated into his own hand. This is the first Form 1 matter attached to count 10 on the plea indictment.
It was not an isolated incident. Other assaults occurred, never at school, but either somewhere inside the boy’s house or whilst the offender took him for bush walks. The offender told the boy that what he was doing was sex education. After he ejaculated on one of these occasions he showed the boy the semen in his hand and said "This is semen, the seed."
On a school excursion to the Myall Lakes the offender came to check the boy’s tent. He directed another boy to leave. The victim called out to his friend not to go but the offender told the friend to leave. The offender removed the victim’s pants and began touching the boy's penis. The offender then removed his own penis from his pants and it was erect. They were both kneeling. The boy then started to masturbate the offender. After a short time the offender ejaculated onto the floor of the tent. He then cleaned it off with his handkerchief. Later the boy joined his friend, who asked if he was alright. The boy responded "no". He was visibly distressed and upset. This is the second Form 1 matter attached to count 10 on the plea indictment.
The offender assaulted this victim in the same manner throughout the weekend. It happened in the sand hills and in the toilet block. It always happened when he was alone with the offender. The assaults continued to the end of the school year but did not continue in 1973.
Victim 17 was born on the 13th of December 1961. In 1973 he started first form at Marist Brothers at Hamilton. In 1974, when he was 12, he progressed to second form and the offender was his teacher. He considered the offender to be what he described as “touchy feely” with other boys in the class. The offender would rub his hand on the chest and shoulders of the boys. One day the boy was in his usual classroom. The class was told by the offender to undress down to their swimmers. They were to learn about CPR. They had to pair up with another boy and one lay on the ground. The victim was lying on the ground when the offender came over to him. The offender said he was going to check for a pulse and spoke of doing so either in the neck or groin. The offender then put his hand on the boy’s groin and said it was hard to find the pulse there. He put his hand inside the boy’s swimmers through the leg opening and felt towards the boy's testicles. He then started rubbing his hand against the boy’s testicles. This is count 11 on the plea indictment.
The next incident was at either Newcastle or Merewether baths. The boys were there for swimming training for the Bronze Medallion. They had been swimming with clothes on. They were in the change rooms getting changed. The offender made some reference to revising their CPR and told the boys to look for a pulse. The offender then came over to the boy and said "Do you remember where that other one is …?" The boy told him. The offender then put his hand onto the groin area of the boy on the outside of his swimmers. He then started to rub the boy's testicles through the swimmers. This is the Form 1 matter attached to count 11 on the plea indictment.
Victim 18 was born on the 21st of July 1961. In 1973 he commenced school at Marist Brothers in Hamilton. In 1974 he progressed to second form. The offender was then his class master. At the time the boy was small in stature. The offender was running the Duke of Edinburgh Awards training before school and it involved going to Bar Beach for swimming. After the swim the boys would go to the change rooms. The offender told the boys to remove their speedos when showering, as it was pointless to shower leaving them on. The offender joined the boys naked in the shower. His penis was semi erect. The offender came over to the boy and said "Wash it properly" and rubbed his hands on the boy's penis and testicles. The offender was saying he had to get all the sand and salt water off. The offender did this for about 30 seconds. This is count 12 on the plea indictment.
The offender organised father and son camping weekends at Myall Lakes. This victim and his father went to one of the camps. The boys used to play water games. One involved a truck tube. The boy remembers swimming out with other boys and the truck tube when the offender came up in the middle of the tube. The offender sat up on the tube with the boys. The offender then flopped his penis out of his speedos and told these boys one of these days they would be like him. The offender then picked up the hand of the victim and placed it on the offender's penis. He held the boy’s hand there and talked about the different texture of the penis. One of the boys, started to rock the tube and everyone fell off. This is the first Form 1 matter attached to count 12 on the plea indictment.
Later in the year, probably the start of 3rd term, the offender sent a letter home about boys assisting to build a speed boat. This same victim’s mother volunteered the boy to help. It involved working on a Saturday afternoon at school in the wood work shed. One afternoon the boy arrived and thought there were no other boys there. He was about to leave when the offender approached and told him there was another boy present. That other boy left after a short time, leaving the victim alone with the offender. The victim was working on the boat and the offender approached him from behind. The offender put his hands between the boy’s legs and grabbed him on the genitals. The offender lifted the boy up. The boy squirmed to get away. The offender let the boy down and he got on his bike and left. This is the second Form 1 matter attached to count 12 on the plea indictment.
Victim 19 was born on the 17 of June 1960. In 1973 he commenced High School at Marist Brothers at Hamilton. He progressed to year 8 in 1974. The offender taught the boy science that year. The boy was also doing the Duke of Edinburgh Scheme. They were being taught how to rescue people and drag them out of the water and how to perform holds if people were panicking. The offender was running the scheme. One day they went to the Merewether baths for instruction. The boy was in the water and the offender was in the water with him. The offender was demonstrating how to break a hold. The boy had his back to the offender, who had his arms around the boy. The boy was supposed to break the offender's hold using his arms. Whilst this was happening the offender had an erection and it was sticking into the boy’s back. The offender held the boy in that position for a minute to a minute and a half. This is the fifth Form 1 matter attached to count 3 on the trial indictment.
That outline of the facts is intended, primarily, to inform a consideration of the objective seriousness of the offending. The summary way in which it is necessary to approach that outline is a reflection of the practical limitations in delivering sentencing remarks orally. It should not be thought that the summary nature of the outline is a reflection of any failure on my part fully to appreciate the considerable suffering, pain and humiliation that the offender inflicted upon individual victims, not just at the time of the offending, but in the decades since. All of the victims have demonstrated extraordinary resilience and depth of character in coming forward and giving their individual accounts of experiences that have had inevitably profound effects on their lives, for many decades now.
The various offences of indecent assault charged in each indictment and contained on the Forms 1 are each the offence known at the relevant time as indecent assault on a male. The section by which that particular offence was enacted was repealed in 1984. The offence carried a maximum penalty of five years imprisonment. That maximum penalty is a reflection of the much more lenient penalties that applied at that time for offences of this character. Penalties now prescribed for similar offending far better reflect the community’s abhorrence of this type of criminal conduct. The community’s expectation is that children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and emotional and other difficulties in later life, caused by such conduct. That expectation has been met over time with the creation of new offences and increasing penalties for offending of this nature.
In this case, whilst the offender’s first offending might have been spontaneous - one simply does not know one way or the other - the subsequent offending reflects a degree of pre-meditation, and a flagrant escalation to numerous other victims over an extended period of time. The audacity of the conduct reflected in the outline of the facts is, frankly, breathtaking. The circumstances of the offending seem at times to bespeak little concern about being detected and certainly no concern for the welfare, wellbeing and security of the victims. The breach of trust and authority involved in each incident of offending was gross; indeed it does not seem to me to be going too far to describe it as abominable. Many of the offences, as the facts reveal, involved cruelty, which included physical violence on occasions, and at times actual harm, all of which served to aggravate further the gross breaches of trust and authority and to involve additional demeaning and degradation of the vulnerable young victims.

The victims here were all particularly vulnerable by virtue of their age and their relationship to the offender. Some of them demonstrated additional vulnerabilities or emotional frailties arising from their particular domestic or other circumstances. Through the positions he held and the roles he performed at the various schools, the offender repeatedly constructed opportunities to obtain his own gratification by the sexual abuse of the victims. The offender was in a position of authority and trust. A position that he grossly exploited through his persistent predatory conduct.
Offending of this nature, even where a victim suffers no physical harm, is particularly apt to produce significant and long-standing psychological and emotional consequences.
The victim impact statements tendered on sentence in the present case demonstrate that the offending has had profound, disturbing and substantial negative impacts upon many of the victims’ psychological, emotional and social development and well being. These are all consequences that one might reasonably expect would frequently result from this type of conduct. It reflects one of the many reasons this type of offending is so abhorrent.
These offences occurred over the course of approximately 15 years. During that time the offender had ample opportunity to reflect upon his conduct and the damage that his predation might potentially cause to the lives of the young victims. Notwithstanding that opportunity, the offender persisted in taking advantage of his position, status and attendant power to sexually abuse vulnerable schoolboys who had been placed into his care by their parents. The offender was well capable of comprehending the victims’ vulnerability, and to discern any emotional or psychological frailties that might have been present in any particular individual boy. Indeed, it seems that he might have selected many of his victims on account of their particular frailties. He also was well capable of comprehending the damage which his conduct had the significant potential to inflict. Despite all of this, he persisted in the conduct, not in an isolated fashion or for only a short period, but in a course of determined predatory conduct over a period of many years, with numerous victims, in a way that represented a systematic and flagrant abuse of his position of trust and authority.
Among other matters, a determination of the objective seriousness of the present offending requires consideration of the nature and character of the individual assaults, including the degree of physical contact involved, and the extent to which particular acts were accompanied by some type of violence, threat of violence, or other gratuitous cruelty, or by physical or other harm over and above the degradation and humiliation which necessarily attaches even to what might be described as the least serious examples of this kind of offending. These characteristics are evident from the outline of the offences I gave a short time ago. Some of the incidents involved assaults that, whilst serious, are nonetheless relatively less serious than other of the assaults, particularly than those where violence, threats of violence, physical harm or other cruelty was visited upon the victims. In terms of the indecent assaults, some of them are very serious indeed. As the facts reveal some of them involve acts which are now the subject of offences regarded as much more serious than indecent assault, such as various offences of sexual intercourse without consent.
Even in respect of incidents where there was neither violence nor expressed threats accompanying the offender’s conduct, there was always an implicit threat which resided in the disparity between the offender and the victim, in terms of their age, and size and authority.
It is impossible to conceive that the offender had any motivation beyond his own sexual gratification. He pursued this object, not in an isolated fashion, but over an extended period without any apparent regard to the childhood, innocence and future of each of the numerous victims. He did so in a blatant breach of the trust and authority which had been reposed in him. On any reasonable view, the offending is in its totality very serious. In terms of the individual offences of indecent assault, some, as I’ve indicated are less serious, in terms of a conventional assessment of their objective gravity. I have in mind the offences where the facts reveal there is brief touching, or touching on the outside of clothing for example. Other offences, particularly those involving oral sex or digital penetration are very serious indeed and, particularly where the facts reveal that they are accompanied by acts of violence or other cruelty, they might reasonably be considered as extremely serious examples of the particular offending. The four counts of buggery are all very serious. None of them were isolated events. With one exception, count 13 on the trial indictment, the evidence revealed that the offending was accompanied by a degree of violence and threats, they were persisted in despite obvious distress and pain occasioned to the boys and resulted in physical harm to the boys as a consequence. Naturally, they also had profoundly disturbing psychological consequences for the victims, which continues even now, decades after the physical damage has healed.
The offender is now aged 83. As I have already noted, he was aged between 28 and 42 at the time of the offending.
He had a relevantly unremarkable upbringing in a loving home in northern Queensland. He was educated at Catholic primary and high schools. He went to a Marist Bros training facility in Mittagong, after leaving school, and he joined the order in 1952. He taught at various Marist Bros schools in his time as a Marist Brother. He left the order in 1978 and thereafter taught at a Christian Brothers school until he retired after hurting his back in 1989. He has since then occasionally worked outside the teaching profession.
The evidence reveals that he has generally been healthy as an adult but is now suffering, or has in the recent past suffered from, a number of medical conditions, which appear to be largely attributable to his advanced years. In this respect I refer to cataracts, osteoarthritis, lumbar back pain with some disc degeneration, hypertension and ischaemic heart disease, the latter addressed by way of a stent. He also suffers from asthma, which he has had since childhood. It appears he is on a variety of medications to manage those and other conditions and is consequently stable. He uses a walking frame for mobility, apparently following a bilateral total knee replacement, but has been independent for his activities of daily living. Since being in custody he has been referred to external consultants in respect of prospective surgery for his cataracts and in respect of carpal tunnel syndrome from which he suffers. An application has been made that I recommend the offender serve any period of incarceration at the Kevin Waller Unit at Long Bay prison complex, a unit apparently designed specifically to provide for the needs of aged prisoners. It seems to me that questions of classification and housing are fundamentally matters for Corrective Services. However, to the extent he otherwise meets the appropriate criteria, I am prepared to recommend, for whatever that recommendation is worth, that the offender be allocated to the Kevin Waller Unit or such other location as might appropriately cater for the particular needs of aged prisoners.
The evidence suggests that he is coping with custody without difficulty and has developed strategies to keep himself busy. He has had support from a church representative in prison and he has expressed a wish to undertake training to learn skills to support other inmates in coping with their problems. He also has ongoing family support, in particular through a niece and her husband. A psychologist who assessed him for the purposes of the sentence hearing suggested that he may benefit from an intensive group based sex offender program, from continued church pastoral care in custody and from placement in a cell with another, more long term and experienced offender who has learned to cope in prison.
The offender has no prior convictions and material has been tendered on sentence attesting to his apparent devotion to his calling, his good character and his diligence and attention to detail in and about his duties as a teacher, and otherwise, within the religious order of which he was a member for 25 years. The referees express that they have variously perceived the offender to be highly professional, hardworking, humble and embodying values of integrity, compassion and justice, although one referee observed that he is sometimes somewhat naïve about the ways of the world. The referees attest to the fact that in identified aspects of his life, the offender has made a substantial positive contribution to the life of the community, particularly through his teaching and associated activities.
Regrettably, far too frequently offending of this kind is enabled by perceptions such as these. That is why it is often said that the mitigating value of good character should be diminished, or even entirely disregarded, when sentencing for these types of offences. That said, particularly where the statutory injunction to exclude good character as a mitigating feature in child sexual offences has no present application, these features must not be taken out of account entirely, and his history of, and potential continued capacity for, good works necessarily form an inevitable part of the context against which the sentencing synthesis must be undertaken.
Save to the extent the guilty pleas might be so interpreted, the offender has expressed no remorse for his predatory conduct, nor insight into its consequences for his many victims. The pleas, in fact, might rather reflect a recognition of the strength of the Crown case, particularly following the guilty verdicts on the first indictment, rather than any particular remorse. The offender has, nonetheless, been assessed as a low risk of reoffending.
In respect of the offences on the later indictment, it is conceded, and I accept, that a discount on sentence of 15% is appropriate to reflect the utilitarian value of the pleas. That discount will be applied in respect of the corresponding offences.
It has been submitted on the offender’s behalf that in his circumstances, that is, in light of his age and attendant infirmity, any term of imprisonment will be more burdensome than it might otherwise have been and that that is an appropriate basis to extend him some leniency. I will take that factor into account on sentence, however it should be noted that through remaining undetected for so long the offender has enjoyed being at liberty through a long period of his adult life during which, if he had been brought to account earlier, he would likely have spent a considerable time in custody.
Among the various objectives of sentencing, in a case like the present, general deterrence is of prime importance in making the community aware of the attitude of the courts to child sexual offences and in particular to offending which involves a significant breach of positions of trust or authority. Any sentence imposed for offending of this character must embrace a substantial element of general deterrence, no matter how long the particular offending may have gone undetected. This objective of sentencing is of particular importance where an offender was in a position of trust and authority in relation to a victim. There is a need for sentences to be imposed which demonstrate clearly to potential offenders that if they are to yield to their sexual impulses towards children they will be met with punishment, and denunciation, which appropriately reflects the Community’s abhorrence of this criminality.
Given his age and his circumstances, and the likelihood that any risk of reoffending is low, specific deterrence features less in this exercise than it might were the offences being dealt with more contemporaneously with their occurrence.
Rehabilitation, too, is not a consideration which looms large in the present exercise. Firstly, on account of the offender’s age and his circumstances. Secondly, and perhaps more significantly, on account of the fact that the offender has expressed no remorse for his conduct and has given no apparent recognition to the necessity for rehabilitation. Balanced against this, however, is the need for some recognition to be given to the fact that his substantial history of positive contributions to the community in many areas, notwithstanding the failings which this offending represents, gives some positive foundation to a conclusion that there is potentially a continuing capacity to make positive contributions to society in the future.
The offender is to be sentenced for offences committed over 40 years ago, up to 55 years ago. It seems to be common ground that sentencing practices have in the meantime moved adversely to the offender.
The offender is, accordingly, entitled to be sentenced consistently with the sentencing practices as at the date of offending, including in respect of the imposition of a non-parole period.
I was referred to, and have considered, a number of decisions concerning the relevant principles. I have been taken to no cases which permit any conclusion as to the existence of specific sentencing patterns at the relevant times. The experience of the courts, as reflected in particular in numerous decisions of the Court of Criminal Appeal, support the proposition that there has been a general upward trend in the sentences imposed in recent years for like offending.
Some of those decisions concerning sentencing for historic offending seem to accept that sentencing patterns for particular periods, even when they can be observed, cannot be discerned with exactitude. The best articulation of the situation appears to be that sentences were shorter at the relevant times than they are now for like offending. Frankly, that is hardly surprising, particularly given the leniency apparent in the maximum penalties then prescribed by Parliament, and the vast range of conduct that was potentially caught by the offence of indecent assault on a male. There also seems to be authoritative recognition for the proposition that at the relevant times non-parole periods were customarily between one third and one half of the head sentence. For all practical purposes, it seems to me that recognition of a movement in sentencing practices adverse to the offender in the time since these offences were committed must inevitably have its expression in little more than the extension to the offender in the synthesis of a degree of leniency that would not otherwise have featured, were he being dealt with for more contemporaneous conduct.
Whilst the offender is entitled to an account being taken of the general trend, too concentrated a focus on the earlier decisions runs the considerable risk of subverting the proper exercise of the discretion in this particular case. In this synthesis, the trend in sentencing practices in the meantime is only one of many factors which must be taken into account. It seems to me it would be wrong to attempt a slavish reproduction of the sentence which, viewed from this distance in time, one thinks might have been imposed 40 to 55 years ago. For example, whilst non-parole periods seem generally then to have been between one-third and one half of the head sentence, it does not necessarily follow that this range must inevitably apply when sentencing today. The statutory ratio now prescribed has no necessary application in the circumstances. To the extent it might be required, however, I find special circumstances based on the change in practice in the meantime. That finding also serves to reflect the possibility of a need for the offender to have help adjusting to a return to community life on release, and his medical needs which I anticipate will make imprisonment more severe for him than it would be for younger, fitter prisoners.
In respect of non-parole periods, it is worth remembering that it was at the relevant time, as it is now, necessary to ensure that any non-parole period represents the minimum period of imprisonment required to be served by an offender, having regard to all of the purposes of justice, assessed against the objective gravity of the offending and in light of the offender’s subjective circumstances.
Critical factors, in terms of imposing an appropriate sentence, are the nature of the criminal conduct proscribed by an offence and the applicable maximum penalty. Ultimately, after taking into account all the factors relevant to the synthesis, sentences imposed must reflect the objective gravity of the conduct and have an appropriate proportion to the attendant criminality.
In all the circumstances, I am satisfied that for each of the offences on both indictments there is no appropriate penalty other than imprisonment.
I have decided to impose an aggregate sentence. That aggregate sentence will accommodate the extent of accumulation I consider appropriate to reflect the totality of the criminal conduct. Here some of the offences occurred as part of the one episode, others occurred on separate occasions. There were numerous victims, 19 in total. The offending conduct spanned a period of approximately 15 years. Where a sentence for one offence can comprehend and reflect on the criminality of another, the sentences should be served concurrently. If not, there should be at least partial accumulation to reflect the fact that there were separate and discrete criminal acts committed. There must be an appropriate relationship between the totality of the criminality involved in the series of offences, and the totality of the sentences actually imposed. It is necessary to ensure that the aggregation of all the sentences is a just and appropriate measure of the total criminality involved.
It should follow from what I have already outlined that the sentence I will impose does not represent an appropriate sentence for such offences committed today, or in the more recent past.
The orders which I make are as follows:

In respect of counts 1 to 13 inclusive on the indictment dated 10 March 2015 and counts 1 to 12 on the indictment dated 19 March 2015, the offender is convicted.

I impose an aggregate sentence consisting of a term of imprisonment of 16 years commencing 19 March 2015 and expiring on 18 March 2031 with a non-parole period of 8 years commencing 19 March 2015 and expiring on 18 March 2023.

The offender will be eligible for release to parole on 18 March 2023.

I recommend that the offender be allocated to the Kevin Waller Unit at Long Bay or such other location as might appropriately cater for the particular needs of aged prisoners.

Had I not imposed an aggregate sentence, I indicate that I would have imposed the following sentences of imprisonment in respect of the individual counts on the two indictments, taking into account the matter(s) on a Form 1, where one attaches to a particular count (identified by an asterisk) and a discount of 15% for the pleas of guilty in respect of the counts on the second indictment:

Indictment dated 10 March 2015

1. For Count 1, a sentence of 18 months imprisonment.
2. For Count 2, a sentence of 3 years imprisonment.
3. For Count 3*, a sentence of 8 years imprisonment.
4. For Count 4, a sentence of 2 years imprisonment.
5. For Count 5, a sentence of 6 years and 6 months imprisonment.
6. For Count 6, a sentence of 3 months imprisonment.
7. For Count 7, a sentence of 4 years imprisonment.
8. For Count 8, a sentence of 4 years imprisonment.
9. For Count 9, a sentence of 3 years imprisonment.
10. For Count 10, a sentence of 3 years 6 months imprisonment.

11. For Count 11, a sentence of 2 years 6 months imprisonment.
12. For Count 12, a sentence of 9 years imprisonment.
13. For Count 13, a sentence of 5 years and 6 months imprisonment.

Indictment dated 19 March 2015

1. For Count 1*, a sentence of 3 months imprisonment.
2. For Count 2, a sentence of 1 months imprisonment.
3. For Count 3, a sentence of 4 months imprisonment.
4. For Count 4, a sentence of 1 months imprisonment.
5. For Count 5, a sentence of 4 months imprisonment.
6. For Count 6, a sentence of 1 months imprisonment.
7. For Count 7, a sentence of 1 months imprisonment.
8. For Count 8, a sentence of 1 months imprisonment.
9. For Count 9, a sentence of 1 months imprisonment.
10. For Count 10*, a sentence of 9 months imprisonment.
11. For Count 11*, a sentence of 2 months imprisonment.
12. For Count 12*, a sentence of 3 months imprisonment.

**********

Decision last updated: 18 June 2015

Medium Neutral Citation:	R v Cable [2015] NSWDC 93
Hearing dates:	9 March – 19 March 2015; 12 June 2015
Date of orders:	18 June 2015
Decision date:	18 June 2015
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	Paragraph [86]
Category:	Sentence
Parties:	Regina - Crown Francis William Cable - Offender
Representation:	Counsel: Mr Herps – Crown Mr Robinson - Offender Solicitors: Ms O’Connell – Director of Public Prosecutions Mr El-Choufani – Legal Aid
File Number(s):	2012/393036
Publication restriction:	NON PUBLICATION ORDERS