R v Caruana

Case •

[2021] NSWDC 831

•

10 December 2021

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Caruana [2021] NSWDC 831
Hearing dates: Wednesday 18 August 2021; Wednesday 15 September 2021
Date of orders: Friday 10 December 2021
Decision date: 10 December 2021
Jurisdiction:Criminal
Before: Tupman DCJ
Decision:

The offender is convicted for each of the 26 counts.

The offender is sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 to a non-parole period of 10 years with parole thereafter of 5 years giving rise to an overall term of imprisonment of 15 years.

Two offences on s 166 certificate are dismissed.

Catchwords:

CRIME — Historical child sex offences — 26 counts — 12 victims –Indecent assault — sexual assault of boys aged between 10 and 14 — unlawful sexual intercourse — Offences committed between 1982 and 1989 — offender was a priest and boarding house master — victims were in his care as pupils at Chevalier College — Offender found guilty following trial — Victims have suffered a range of serious emotional sequelae — Ten Victim Impact Statements provided and taken into account — Offender has no prior criminal record — Offender is 80 years old — very low likelihood of reoffending.

Legislation Cited:

Crimes Act 1900 (NSW): ss 61E(1), 61E(1A), 66C(4), 78N (repealed), 578A;

Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 21A(2)(g), 25AA, 53A.

Cases Cited:

R v Blanco (1999) 106 A Crim R 303

Category:Sentence
Parties: Regina (The Crown)
Anthony Caruana (The Offender)
Representation:

Counsel:
Ms. N. Keay of Counsel (The Crown)

Solicitors:
Ms. S. Foggo (The Crown)
Mr. G. Walsh (The Offender)
File Number(s): 2019/00114636; 2019/00306697
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), there is to be no-publication in relation to any material which may identify the complainants in this matter.

Judgment

  1. HER HONOUR: This is the sentence judgment for the offender Anthony William Caruana. The offender comes before the Court for sentence after a jury found him guilty of 26 counts in an indictment dated 18 May 2021. All of the offences for which he comes to be sentenced are either offences of indecently assaulting boys between the ages of 10 and 14 or other offences of sexually assaulting those boys and were committed between 1982 and 1989.
     

  2. They, thus, fall into the general category of historical child sexual assault offences. Section 578A of the Crimes Act 1900 (NSW) applies to this sentence judgment meaning that there can be no publication of anything that might identify any of the complainants in this matter. As such I will refer to each of them in this judgment by initials and will ensure that any publication of this judgment reflects that.
     

  3. There are 12 complainants, the victims of these offences. The accused was arraigned before a jury on this indictment dated 18 May 2021 and the trial proceeded for just over seven weeks between 24 May and 14 July. The indictment contained 29 counts. There were two directed verdicts of not guilty on 8 June 2021, namely counts 28 and 29 and between 13 and 14 July the jury delivered verdicts of guilty on all of the remaining counts except for count 3. The jury was unable to reach a verdict on count 3 and was ultimately discharged without verdict on that count on 14 July 2021.
     

  4. The Crown has subsequently advised that there will be no further proceedings in relation to count 3. Thus, the offender comes to be sentenced for the remaining 26 counts. Even though all of these counts are either offences of indecent assault or unlawful sexual intercourse they are contrary to different provisions of the Crimes Act 1900 relevant at the time the offences were committed.
     

  5. Sixteen of the indecent assault charges are contrary to s 61E(1) of the Crimes Act 1900, then in force, namely offences of indecently assaulting the named victim who was under the age of 16. Each of those charges carries a maximum penalty of 6 years imprisonment.
     

  6. Six of the charges are charges of indecently assaulting the named complainant who was both under 16 and under the authority of the offender. They are contrary to s 61E(1A) of the Crimes Act 1900, then in force, and each carries a maximum penalty of 6 years imprisonment.
     

  7. There are also four charges contrary to s 78N of the Crimes Act 1900, then in force, namely that the offender had homosexual intercourse with the named complainant who was his pupil at the time. These offences all carry a maximum penalty of 14 years imprisonment.
     

  8. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to these sentences and provides the following:

A court must sentence an offender for a child sexual assault offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

  1. This is a relevantly recent legislative amendment and is a significant change to the way Courts must sentence for historical child sexual assault offences. There can be no doubt that sentences for offences of child sexual assault especially by those in authority over victims have increased significantly in more recent times and that current sentencing practices would almost never allow for a non-custodial penalty for such offences. That must be taken into account when sentencing for all of these matters but the relevant maximum penalties for each of them is as they were at the time the offences were committed.
     

  2. There are some general facts relevant for each of the individual counts. The offender is now aged 80 and was between 41 and 48 at the time of the offending. All of the victims were aged between 12 and 14. The offender decided to become a priest at a very young age of 10 and entered a seminary at the age of 12 in 1953. He became an ordained priest in the order of the Missionary of the Sacred Heart.
     

  3. At the time of the offending, he was teacher at Chevalier College at Burradoo or Bowral initially teaching religion and music, then becoming assistant to and ultimately a house master at the school and band master and rugby coach from time to time.
     

  4. All of these offences were committed against students who were under his care in one or other of those capacities at the school during the period between 1982 and 1989. As such, each of the offences was committed in circumstances where the offender owed a special duty to each of these young boys over and above that which every adult owes to every child and especially so those who were boarders and away from home, often for the first time and each of them involves a breach of trust towards these children. These boys were entrusted to the school and the care of the teachers and priests like this offender and he abused that trust by sexually assaulting them as he did. This special position of trust goes beyond the fact that for each offences the victim was under the authority of the offender which in any event is an element for the later indecent assault charges or that the victims of the homosexual intercourse offences were pupils of the offender which is also an element of those offences. It is a special position of trust and duty owed by the offender to each of these children which in this case amounts to a circumstance of aggravation.
     

  5. I propose to deal with some general issues relevant for each of the sentences including the subjective factors surrounding the offender before dealing with the individual offences. This is not the usual way of ordering a sentence judgment but I propose to factor these general findings into individual findings for each offence and stating them at this early stage in the judgment will avoid repetition when doing so.
     

  6. I deal first with the issue of delay and the impact that that has on this sentence. There has been delay in bringing these offences before the Court for trial. They are all now between 32 and 39 years old. The Court is entitled take delay into account when determining the appropriate sentence for any offence and usually any substantial delay is likely to be taken into account by reducing what would otherwise be the appropriate sentence and that is a submission made here on behalf of the offender.
     

  7. In the R v Blanco (1999) 106 A Crim R 303 the then Woods CJ at CL found that the Court needed to exercise a “measure of understanding” when dealing with sentences for offences where there has been considerable delay. Delay in sentence can be taken into account in determining an appropriate sentence in two main ways. One is on the basis of fairness to an offender and the second way is in assessing the extent to which rehabilitation has occurred in the interim.
     

  8. This is not a case in which the first of those consideration applies. The offender has not spent the intervening period with what has often been referred to as ‘the sword of Damocles’ hanging over his head. There is no evidence to support the submission made on his behalf that he has been aware that one day he would have to face the consequences of his actions. In fact, quite the contrary. As will be discussed soon he has either been discharged or acquitted in relation to earlier charges and presumably the fact that some of the complainants received compensation payouts from the order itself, but no criminal charges were brought at that stage, did nothing to increase any feeling that someday he would need to be called to account by the criminal justice system.
     

  9. The delay here has been significant which is often the case in relation to allegations of child sexual abuse. It is the experience of the Courts and demonstrated by the findings of the Royal Commission into the Institutional Responses to Child Sexual Abuse that there are often lengthy delays between child sexual assault offending and the reporting of the offences by victims to authorities. That is the case here for most of the victims but not the victims relevant for counts 26 and 27.
     

  10. The background to the delay is that in 1989 a complaint was made by a number of students at Chevalier College which was investigated by police. The offender was almost immediately removed from his teaching position within the college to a non-pastoral role as an archivist with the order based in Sydney which is where he remained until going into custody following the guilty verdicts in this trial. It was not, in fact, his decision to remove himself from teaching as he asserted to Dr Nielssen during the course of a medico-legal psychiatric report tendered on this sentence but rather the completely appropriate response of the order once the allegations were made against him in 1989.
     

  11. He was at that stage then charged with 11 offences involving seven complainants. Charges were withdrawn in relation to one complainant at Court. For another four including the two complainants relevant for counts 26 and 27 in this indictment the accused was discharged at committal stage and not committed for trial. For the remaining two complainants the offender was committed to stand trial. Those trials ran separately in the District Court in March and October 1992. At that time it was not open to the Crown to join the two complaints or to rely on tendency evidence. He was acquitted by two juries in relation to those two complainants.
     

  12. Some of the complainants in this matter then gave evidence to the Royal Commission and following that, New South Wales police set up a strike force to investigate the offender. One of the complainants went to police and the others then responded either to police requests or came forward after hearing the offender had been arrested in relation to some of the victims. There is no unfairness to the accused in the fact that these offences come for sentence after a lengthy delay in these circumstances. He has not had the sword of Damocles hanging over his head in these circumstances in the ensuing period.
     

  13. The second basis on which delay can reduce what would otherwise be an appropriate sentence is where there has been demonstrated rehabilitation. That, in fact, is relevant to a consideration of sentence in this matter. The offender has not offended again since he was removed from his position at Chevalier College. That was in circumstances where the order placed strict limitations on him and, in particular, gave him a post in Sydney in archives which meant there was no risk of his having contact with children. They also provided professional treatment to him for a period of time which I accept reduced any risk. Further he is now 80. There are other matters which I will refer to soon from which I accept that he has demonstrated some rehabilitation, albeit in circumstances where he pleaded not guilty to these charges.
     

  14. That was not entirely of his own choosing initially but it seems to me that in considering the impact that it has on delay that is not relevant. The fact is that since 1989 he has not reoffended and has taken advantage of the treatment services made available to him by the order. It may not have been voluntary initially but it has occurred. There is, however, no evidence to support the submission made on his behalf that he has been ostracised by his order and, in fact, he appears to have been appropriately and compassionately dealt with by them, appropriately moving him away from children and compassionately providing him with assistance to deal with his problems.
     

  15. On the other hand, of course, during this period in which he has been able to demonstrate rehabilitation, albeit not admitting the offending he has been in the community at large able to enjoy a reasonably comfortable life continuing to have the benefit of friendships and undertake his many interests. These are all factors which I take into account when determining the extent to which, if at all, delay impacts on the appropriate penalty here. In large part it really only impacts on the assessment of his prospects of rehabilitation and whilst it is a lengthy delay this is not uncommon in matters of this type and should not cloud a real assessment of the seriousness of these offences and all of the other matters that I must take into account pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999 when sentencing for these offences.
     

General Subjective Factors

  1. I now turn to general subjective factors surrounding the offender. As I have said he is now 80. This is his first time in prison. He did not apply for bail and was convicted and has been in custody, bail refused, since 14 July 2021 when the last of the verdicts was delivered by the jury. Whilst he is to be sentenced as a person with no prior criminal record at the time he committed the offences he is not, in my view, a person who is entitled to be regarded as a person of good character. This was an ongoing course of sexual offending over 7 years starting in 1982 and continuing. He was not found out for any form of such offending, at least not at Chevalier College, until 1989 and not in relation to the bulk of the matters before me until much more recently following the investigations after the Royal Commission but that does not make him a person of good character.
     

  2. Further, the material discovered in church records after he was moved to Sydney in which the offender answered a questionnaire and provided answers to a psychologist and more senior members of the order, makes it clear that at the time he was a person who had a sexual interest in boys but also knew he had a sexual interest in boys at the time. These offences are proof that not only did he have that sexual interest in boys but that at the time he committed these offences he acted on that sexual interest.
     

  3. There has been a report tendered from Dr Nielssen, psychiatrist, well known and recognised by the Courts. I accept from that report that the offender seems to have acknowledged to Dr Nielssen that he had sexual feelings towards boys. He told Dr Nielssen that he had to fight these feelings and on one occasion asked for a boy to be removed from his class because he found him beautiful. This is consistent with the answers he gave in the questionnaire administered to him after he moved to Sydney and which was discovered in the school records in more recent times. That would, at least, appear to be a truthful answer given to Dr Nielssen. Not so the answer he gave that he had removed himself voluntarily from teaching after the complaints were made in 1989. That was not his decision. It was a decision made by the Order.
     

  4. The offender came to Australia as a 6-year-old with his family and settled in the eastern suburbs. It seems his mother was Austrian, and his father was Maltese and neither of them spoke English well which caused some issues initially. He had started school in Egypt because his father had worked there as a clerk for tea suppliers to the Suez Canal and then after arriving in Sydney his father worked with Bushells.
     

  5. As previously referred to, he decided to become a priest at the age of 10 and joined the junior seminary at Douglas Park in the Southern Highlands from 1953 when he was only 12. That is an absurdly early age at which to separate a child from his family and fortunately does not occur any longer in Australia. He then spent a year as a Noviciate following school and 4 years in Canberra studying philosophy with a further 4 years then studying theology in Melbourne.
     

  6. After he was ordained as a priest, he started teaching in Canberra in the mid-1960s. According to the history provided there was apparently a complaint made about his behaviour whilst he was teaching at Damaraland College in Canberra in the early 1970s which gave rise to a civil action against him but there is no more detail of that before the Court, no indication of what it refers to and no indication that there were any criminal proceedings arising as a result. If it be that this behaviour also was of a sexual nature towards children, what is troubling is that at that stage he was not removed from teaching or from contact with children but rather spent the next 3 years as a priest in Papua New Guinea and then returned to Australia where he completed a degree in education and then taught for 7 years at Chevalier College between 1982 1989, the period of the offending before me.
     

  7. He has self-reported symptoms of depressions to Dr Nielssen especially around the time of the earlier charges in 1989 and when he was charged with the matters before me and I accept Dr Nielssen’s diagnosis that he suffers from a depressive illness but also that it is not severe and his diagnosis is based largely on the history of symptoms given to him by the offender rather than any observation of them made by Dr Nielssen.
     

  8. I also accept Dr Nielssen’s diagnosis of probable homosexual paedophilia which he based not on direct admissions by the offender but rather on his own analysis of the offending and the documents provided to him by the order involving his treatment following the 1989 allegations including statements made by the offender to those providing that treatment. I accept more probably than not that this is a likely diagnosis. Whether or not it has its aetiology in the very early pathway into Holy Orders as suggested by Dr Nielssen, it seems to me it is not a matter about which I can or need make any finding. The issue for sentence is the extent to which this disorder continues and the extent to which is it likely to effect both his prospects of rehabilitation and any risk.
     

  9. I accept Dr Nielssen’s opinion that the offender has a very low likelihood of any further similar offending, both on the basis of an actuarial assessment and a clinical assessment. The offender’s age, the fact that he will be in custody for a considerable period, the fact that he has not reoffended since 1989 in this or any other way and the fact that even if he were in the community in due course, he would not be in a position to have any contact with children because of the restrictions placed on him by the order, it seems to me makes that conclusion almost inevitable.
     

  1. In support of the submission that I would regard him as a person of good character and treat that as a mitigating factor, I have also read references provided to the Court from two longstanding friends and colleagues. I accept that they are both genuinely offered to the Court. They are longstanding cycling colleagues. The offender has been a keen cyclist for many years including when he was teaching at Chevalier. I accept from those references that over the last 25 years the offender has made some important and positive contributions to the community at the same time as undertaking the archivist work for the order in Randwick. He ran a boarding house on behalf of the order which made a profit for the church. He has also started and run a brass band. He also took care of his elderly mother in Sydney after he returned to live there and before her death in more recent years. He has provided assistance to his friends and is regarded highly by them. I accept that the references they have provided to the Court are honest but I do not accept their assessment of the offender’s character. In particular, I do not accept that he is, as stated by one of these referees, and I quote, “a very spiritual, religious and highly moral person” or as being, “honest, helpful and fair”.
     

  2. Neither of these friends makes reference to the very serious charges before the Court and neither of them would appear to have any knowledge of the offender’s history with the church around the time he was removed from Chevalier College in 1989 and the treatment provided to him by the order at that stage. I make no criticism of these referees for not having this knowledge, but it does reduce the weight that I place on the opinions they have provided to the Court about the character of their friend.
     

  3. The offender has a medical condition or has had a medical condition of coronary heart disease and underwent valve replacement surgery about 3 years ago. I accept more probably than not he will need monitoring for this heart condition whilst he remains in custody. The Court is aware that that level of medical care is available to prisoners within Corrective Services. He seems to have otherwise relatively good health for man of 80 and at least before his incarceration was in the habit of undertaking long bike rides with friends 2 or 3 times a week. Further, Dr Nielssen did not find any evidence of cognitive deficits or dementia.
     

  4. His age, 80, however, is also a relevant consideration. Notwithstanding his relative good health at 8,0 he in the latter stages of his life and I take into account the possibility that the sentence I will be imposing today will have the effect that he will spend at least most, if not all, of the rest of his life in custody. Whilst that is a factor to consider it should not overshadow the other relevant sentencing principles.
     

  5. I also take into account that he is likely to spend his non-parole period in some form of protective custody given the nature of his offending and as a priest. Further, there are greater restrictions in the prison system currently and likely into the foreseeable future because of the COVID pandemic which has already, and is likely in the future, to reduce any opportunity he has of ongoing contact with visitors. That will make his experience of his non-parole period somewhat more onerous.
     

  6. I have already dealt with the issue of his prospects of rehabilitation when dealing with the aspect of delay. His prospects of rehabilitation in my view are good for the reasons already outlined. That is however just one factor to take into account when sentencing him for these offences.
     

  7. As for any genuine remorse and contrition whilst there is a suggestion in Dr Nielssen’s report that he was remorseful for his past behaviour there is no evidence of that before the Court and, of course, he pleaded not guilty to all of the charges. He is clearly entitled to do that and the fact that he did so does not increase the appropriate penalty. He is, however, not entitled to any discount that would apply for pleas of guilty to represent either the utilitarian value of those pleas or to take into account as part of an indication of remorse and contrition.
     

  8. Denunciation is also an important aspect of sentence generally to be taken into account and particularly so in offences of this type. The sentence that I impose must take that into account. There has been some reporting of these proceedings involving the offender and details of that have been provided to the Court. It seems to me that it has not been particularly extensive and no more so than might be expected. It is not, in my view, of the type which would amount to extra curial punishment.
     

  9. Clearly enough, the sentence that I impose must reflect a considerable degree of general deterrence given the nature of these offences and I will have some more to say about that later in this sentence. Specific deterrence, however, in my view, does not figure significantly in this sentence.
     

  10. I now turn to consider the individual counts with those general propositions outlined and taking them all into account when dealing with each of the offences.
     

Count 1: Victim RT

  1. Count 1 involves the complainant RT and is an offence contrary to s 61E(1) committed at Mittagong between 1 February and 31 March 1982 when he was 12. He had just started as a boarder at the school and was in year 7. The facts relevant for this offence are that the offender himself had only just started as a teacher at the school and was present in that role at the school swimming carnival in Mittagong.
     

  2. The jury clearly accepted the evidence of RT and I accept that this offence occurred when he was in the kiddies’ pool at the end of the swimming carnival and that the offender got into the pool and groped RT’s genitals under the water on the outside of his swimmers for about 20 to 30 seconds. This was an isolated offence against RT who then remained at the school, but he continued to have a strong memory of this at the time he gave evidence.
     

  3. Objectively, this offence is towards the lower end of the scale of such offences. There is no evidence of planning. The offence was for a short period of time. The touching was on the outside of the clothing and there is no evidence that the offender said anything to prevent the victim from disclosing the offending to others. I do take into account the overall aggravating factors to which I have already referred, however.
     

  4. The impact on the victim is not specifically known for this offence. He did not provide a Victim Impact Statement (VIS) to the Court, but the Court is aware of the likelihood of ongoing psychological sequelae because of the known impact of child sexual assault on individuals.
     

  5. In practical terms there is no alternative but for a term of imprisonment for this offence. There is no discount for a plea of guilty. It is low on the objective scale. The maximum penalty is 6 years. With all of the factors taken into account to which I have already referred it seems to me that this should give rise to a term of imprisonment of 12 months.
     

Count 2: Victim JOM

  1. Count 2 involves the complainant JOM and is another 61E(1) offence committed between 13 July and 30 September 1982 at Chevalier College at Burradoo. He was a young boy aged 12 who started halfway through 1982 in year 7 as a boarder. He had come back from the US with his family. His father was very keen on Rugby and keen that he should play so he did that and went to rugby training week although initially knowing nothing about the game.
     

  2. The offender was involved either as his coach or coaching another team at training but otherwise assisting generally with rugby coaching or rugby training. JOM gave evidence that on one occasion the accused grabbed his genitals from behind in a rugby scrum during training on this occasion between July and September 1982 whilst he was demonstrating how to bind a scrum.
     

  3. The jury clearly accepted this evidence and I accept this is how the offence occurred. The actual offence on the evidence was the first time that this had occurred, but the evidence given by the victim was that this was not an isolated event but had occurred about once a week at rugby training and he initially thought that this was the normal way to bind a scrum until other boys told him it was not.
     

  4. He prepared and read a VIS which I too have read and taken into account. He has suffered as a result of this abuse and I accept he continues to suffer even 39 years after the event. It is well known to the Courts that child sexual abuse often has profound and deleterious effects on victims for many years and sometimes for the whole of their lives. This man is now 50 and has ongoing psychological sequelae as a result of this sexual assault. He speaks positively of the counselling and professional help he has received and it is to be hoped that this will be ongoing and will help him in the future. I accept that there has been an impact on his relationship with his parents who did not believe him initially. Hopefully the conclusion of these proceedings will, to an extent, provide some resolution for him.
     

  5. This offending is slightly higher in objective terms to that involving the complainant RT. It is not an isolated offence but part of a continuing course of conduct but many of the similar factors are present including that it was for a relatively short period of time and was on the outside of his clothing. All of the other more general aggravating factors also apply. I have concluded that the appropriate penalty for that ought to be 18 months.
     

Counts 4 & 5: Victim NW

  1. Counts 4 and 5 involved the complainant NW and are also s 61E(1) committed at Chevalier between 1 March and 30 April 1982 and 12 September and 16 December 1982 respectively. They both occurred in similar circumstances but at different times.
     

  2. NW was a small boy who was sent to Chevalier as a boarder in 1982 in year 7. He would appear to have been particularly vulnerable as a small boy who was very homesick, and the offender was aware of that. NW missed his foster mother and his home.
     

  3. The offender was not the boarding master at the time but had a bedroom above the dorm where NW resided and was often in the dormitory. The two offences were the first and last occasions on which the offender behaved in a similar way with NW in the dormitory. NW’s evidence which the jury clearly accepted was that the offender would come into the dormitory, would tackle the boys on the bed and that he would tackle NW, turn him on his back and then fondle his genitals and penis on the outside of his clothing.
     

  4. The first time this occurred I accept was when he had just started at the school and is count 4. The last time was in 1983 which is count 5. It was, however, an ongoing course of conduct which occurred, I accept, on the evidence of NW about 40 times over this period of about 2 years.
     

  5. All offences of child sexual assault involve a vulnerable victim, namely a child. Nonetheless the evidence for these two offences is that this victim was particularly vulnerable which was known to the offender. He was a Ward of the State being cared for by foster parents. NW’s evidence was that the offender took a particular interest in him from the time he started at Chevalier and would allow him to come up to his room and would read his foster mother’s letters to him because he could not read her handwriting. NW clearly had a special trust in the offender which the offender abused.
     

  6. NW also provided a VIS to the Court, read out by his counsellor which I too have read and considered. The ongoing abuse of him by the offender has had a long-lasting and adverse impact. His comments in the VIS resonate with all that the Court knows about the ongoing impact of child sexual abuse including ongoing loss of confidence, the adverse impacts on family and intimate relationships especially so because like so many victims of offenders like this one, that is a priest within a religious institution, he was not believed by his foster mother when he told her because of her devotion to the church and disbelief that a priest would behave in that way.
     

  7. The Court also has considerable knowledge that victims like NW frequently suffer lifelong recognised mental health conditions including post-traumatic stress disorder, depression and anxiety and have a lifelong and ongoing need of counselling to deal with the impacts of this childhood sexual abuse and fail to achieve their full potential. The VIS provided by NW would seem to indicate exactly these sorts of impacts on him which as I have said I have considered.
     

  8. There are two offences for him. Each is more or less representative. I can, of course, only sentence the offender for that with which he is charged, not for those occasions which I accept numbered about 40 which are the not the subject matter of any particular charge. I do take those other uncharged matters into account only to the extent that they place each of counts 4 and 5 in their proper context, namely not being isolated incidents of sexual offending against him, 18 months or so apart but of an ongoing course of conduct.
     

  9. Otherwise for each of counts 4 and 5 the indecent assaults would appear to have been relatively brief, on the outside of clothing and also, although there was no doubt opportunities to do so, no evidence that the offender ever threatened the victim or tried to dissuade the victim from disclosing the offending even though there would have been frequent opportunities to do so when he was in the offender’s room reading out the foster mother’s letters.
     

  10. Each of them, in my view, is below the middle of the range for offences of this type in terms of objective seriousness taking into account all of the relevant factors and for each of counts 4 and 5, in my view, there should be a term of imprisonment of 18 months for each. Because they are each being treated as part of an ongoing course of conduct, the relevant sentences involving this complainant should be effectively ordered to be served concurrently with each other.
     

Counts 6, 7, 8, 9 & 10: Victim CS

  1. Counts 6, 7, 8, 9 and 10 involved the complainant CS and are also s 61E(1) offences. Count 6 was committed between 1 October and 30 November 1983 and counts 7, 8, 9 and 10 were committed between 30 January and 4 May 1984. All were committed at Chevalier College.
     

  2. CS was a day student, not a boarder, but he was part of the house of which the offender was the housemaster. He was also in the band and the offender was the band master. CS started there in year 7 in 1983 when he was 12. He was identified early as a good trumpeter and was in the habit of staying after school for band practice twice a week.
     

  3. The offence which is count 6 occurred during band practice towards the end of 1983 after CS had turned 13. I accept the evidence given by CS that the offender singled him out for attention because he was a good trumpeter and, in fact, taught him how to play the trumpet properly. I also accept that the offender took advantage of this victim’s interest in music to commit the offences against him.
     

  4. I accept that the accused would come and stand close to him in band practice to point out particular passages of music and suggest ways of playing them. This was ongoing and on one occasion at band practice the offender stood behind the victim for this purpose and pressed his erect penis against CS's shoulder for about 10 seconds. The offender was fully clothed, but CS could feel it. By finding the accused guilty of count 6, the jury has accepted this evidence from CS.
     

  5. Counts 7, 8, 9 and 10 then occurred in the following year when CS was in year 8. Count 7 occurred one afternoon after band practice. The victim stayed behind to put instruments away or something similar which I accept was a regular occurrence and the offender came into the band room where he was. CS was facing the shelves putting away music or something similar and the offender approached him from behind and whilst fully clothed pushed his erect penis into CS’s bottom in an act he described as like simulating sexual intercourse whilst holding him by the shoulders.
     

  6. CS’s evidence was, and I accept this, that the accused said something like “I know you’ve been thinking of trying to please God”, or similar words, and during the same offence said something like, “I’ve been wanting to teach you something” or “There’s something I want to show you” and further saying something along the lines of “To be at the school you have to love God”.
     

  7. This amounts to quite manipulative behaviour towards a young boy who trusted him and was part of a religious school. CS was frightened but went along with what was occurring and it ended.
     

  8. Count 8 occurred in similar circumstances not long afterwards, where the victim was staying back after band practice and was in the band or storage room. He said that the accused came in fast and grabbed him by the shoulders rubbing his erect penis into his right thigh whilst clothed. His evidence was that this event lasted only about 30 seconds and I accept that this is how this event occurred given the jury’s acceptance of CS’s evidence by convicting the offender of count 8. I accept also CS’s evidence that at the time the offender said words to the effect, “I’m going to teach you”. On this occasion CS told him to stop.
     

  9. Count 9 occurred in very similar circumstances about a week later when CS was again in the band storage room and the lights were off. The accused came in, I accept from CS’s evidence, and turned him around so he was facing the shelf and pushed his erect penis whilst clothed into what CS said was the crack in his pants and in an act simulating anal penetration. CS gave evidence which I accept that he was fearful and ducked down and ran away. This again was also an offence that lasted for a very short period.
     

  10. Count 10 occurred about a week later. CS had stayed out of the band room since the last occasion but on this particular afternoon went in. The offender then came in and was crouched down a little. The victim noticed that the offender’s trousers were lowered. The offender then grabbed CS’s hand and put it around his penis and grabbed that hand with his own hand and used CS’s hand to masturbate him. CS said he resisted but the accused tightened his grip, so tight that he had a bruise on his left hand for a few days afterwards. During this I accept CS said, “No, no, no” and the accused said words to the effect of “You know God will like it if you please a man of God”.
     

  11. These are the 5 counts of indecent assault involving CS, counts 6, 7, 8, 9 and 10. They were all separate incidents with one occurring in 1983 and the other four in 1984, whilst they do represent an escalation not only in the seriousness of the offending against boys generally by the offender but in the offending against CS himself. The last of them, count 10, is starting to become a more serious incident of indecent assault given that it involves forcing CS to have contact with the offender’s naked penis. Each of them lasted only a short period however which is relevant but not determinative and for each of those which occurred in 1984 the complainant was alone in the band room with the offender. I have concluded that for each of counts 6, 7, 8 and 9 there should be a term of imprisonment of 12 months and for count 10, a term of imprisonment of 18 months.
     

Counts 11 & 12: Victim CS

  1. Counts 11 and 12 are offences of homosexual intercourse, both involving the complainant CS who was the offender’s pupil at the time, and both were committed at Chevalier between 1 October and 30 November 1984.
     

  2. These two offences are clearly significantly more serious offences than all of the others either against CS or all of those other offences of indecent assault. This is not only because they each attract a maximum penalty of 14 years imprisonment, but they also represent a very serious escalation in offending against CS. They are amongst the most serious offences committed by the offender.
     

  1. Count 11 occurred towards the end of 1984 in about October. It also occurred after band practice when the victim was staying behind for one reason or another with only the victim and the offender present. This offence did not occur in the band room but just outside in the general band rehearsal space. The offender grabbed CS by the shoulders and pushed him onto his knees. He then dropped his own pants and underpants and exposed his penis which was becoming erect. He grabbed CS by the head and shoulders and pushed his head towards his penis. CS initially had his teeth clenched to avoid the offender’s penis going into his mouth and his neck was hurting. The offender then put both his hands onto CS’s shoulders and pulled him forward and according to the evidence given by CS at that point he gave in and submitted and the offender pushed his penis into CS’s mouth. This occurred for a short time only when CS began to resist and pushed him away. He said, “No this is wrong” and fell onto the floor. These are the facts relevant for the first offence of homosexual intercourse with a pupil.
     

  2. Count 12 occurred around the same time on another occasion after band practice when CS was in the band room afterwards. The offender came in and closed the door. He grabbed CS around his thighs and tried to pull down his pants. The offender then undid his belt, pulled down his CS’s pants, pulled down his own pants, spun him around to face the shelves and tried to push his penis into CS’s anus. CS resisted and said, “No this is wrong” but the offender succeeded in penetrating CS’s anus with his penis. CS’s evidence was that he was pushing into him for a relatively short time because he started to resist. He estimated that the penetration lasted for about 10 seconds. They are the facts relevant for the second homosexual intercourse with pupil offence.
     

  3. These are both serious offences. That he was a pupil of the offender is an element of the offence and it seems to me is something equivalent to a finding that he was under the authority of the offender which would otherwise be an aggravating factor, if not an element. It, thus, cannot be taken into account as an aggravating factor in those circumstances. However, each of them is serious. The sexual intercourse occurred only for a short period but either in the band room where they were alone and the offender had closed the door or a rehearsal space where only the offender and CS were present, thus increasing CS’s level of vulnerability. For Count 12 the offender was becoming more aggressive and forceful and there was actual anal penetration albeit only for a short period.
     

  4. These are serious offences in their own right, but the issue is where on the continuum of offences capable of being charged under this section do they lie when taking into account all of the matters to which I have already referred.
     

  5. There is a VIS prepared and read by CS as well which I have considered. His life has also been adversely impacted by this ongoing sexual abuse. I accept that he was an academically strong student with a great potential. He started to experience anxiety. Like many victims of child sexual abuse, he engaged in substance abuse including excessive alcohol. Each of these offences, in my view, is about the middle of the range, perhaps the first of them a little below.
     

  6. The maximum penalty is 14 years which I must bear in mind in determining the appropriate sentence. Surprisingly for offences as old as this which no longer exist as an offence, it is more or less possible to determine the current sentencing practice for an offence of this type without trying to compare an offence with one which now has a much higher penalty. In fact, this offence if charged today may well be charged as an offence contrary to s 66C(4), an offence of aggravated sexual intercourse with a child aged between 14 and 16, the circumstance of aggravation being that he was under the authority of the offender.
     

  7. The maximum penalty for the offence these days would be 12 years, in fact, 2 years lower, than for a s 78N offence. With that in mind and bearing in mind that I must sentence in accordance with the current practice, it is instructive to look at the statistics published by the Judicial Commission for offences charged under s 66C(4). Whilst only a small sample size of 18 cases, the current sentencing practice for such an offence is clear. Of those 18 cases, 100% gave rise to terms of full-time imprisonment with a range between 2 years and 4 months, and 9 years. That is a clear indication of the pattern of sentencing for such offences, but it seems to me likely that a s 78N offence is likely to have produced much the same outcome even in 1984, namely a significant sentence of full-time imprisonment. That certainly would have been the case for count 12 where there was actual anal penetration. In any event it seems to me that this analysis of current sentencing practices for a very similar offence is helpful in determining the appropriate sentence for this matter.
     

  8. Taking into account all of those and all of the matters to which I have already referred I have come to the conclusion that there should be a term of imprisonment of 3 years for count 11 and 4 years for count 12.
     

  9. If all of the offences relevant for CS were accumulated on each other just those sentences would give rise to a sentence of more than 12 years, which, in my view would be somewhat excessive. I will eventually be imposing an overall aggregate sentence for all 26 offences, but in determining the appropriate composition of that sentence, or content of that aggregate sentence I indicate that if I had been imposing sentences only in relation to CS, that is counts 6, 7, 8, 9, 10, 11 and 12, taking into account totality, I would have imposed an overall sentence of 6 years imprisonment.
     

Counts 13 & 14: Victim ‘DB’

  1. Counts 13 and 14 involve the complainant DB and are also s 61E(1) offences. Count 13 occurred in July 1983 and count 14 between May and August 1984.
     

  2. DB started as a day pupil at Chevalier in 1983 in year 7 and was aged 12. The accused was his form master and rugby coach. Count 13 occurred in circumstances where the complainant had stolen a texta pen from the art room at the school. He was called in to the offender’s office to be questioned about it and the offender searched him for the pen, putting his hand in his pocket. DB gave evidence, which the jury clearly accepted, that the offender touched the top of his penis briefly, maybe for 1 or 2 seconds, but that it was deliberate touching not accidental. As I have said the jury clearly accepted that evidence given the finding of guilt for count 13.
     

  3. Count 14 occurred in similar circumstances where the complainant and others were on a bus on the way back to school from a rugby event in Sydney. DB was down the back of the bus and the offender came down. He moved the boys around because of some poor behaviour or similar. He sat next to DB and put his hand into his pocket and grabbed and squeezed his penis for a short period of time.
     

  4. These two offences involving DB were apparently stand-alone offences and he gave no evidence of similar events. There was no VIS provided from DB, but I accept from his evidence that the incidents continue to have some impact on him and that he was clearly able to recall those two occasions of deliberate grabbing and squeezing of his penis even 37 or 38 years after the event. It is of relatively low objective criminality, but all of the other factors to which I have referred are relevant. For each there should be a sentence of 12 months, and each should be effectively served concurrently with the other.
     

Counts 15, 16, 17 & 18: Victim ‘KW’

  1. Counts 15, 16, 17 and 18 involved the complainant KW. Counts 15 and 16 are s 61E(1) offences, occurring between January and May 1984 and May and December 1985 respectively. Counts 17 and 18 are both counts of homosexual intercourse with a pupil under 16, contrary to s 78N, both occurring between 10 and 28 April 1987.
     

  2. KW started at Chevalier in 1984 as a year 7 boarding student and lived in the dormitory, with the offender as his dormitory master. He stayed at Chevalier until 1989 when he completed year 12. In his evidence he referred to many occasions on which he was sexually touched by the offender, but these four charges are the specific offences for which the offender is to be sentenced. The other evidence given by KW was in the nature of evidence placing the specific charges in context and was an indicator that these four charges were, in fact, part of an ongoing course of conduct by the offender against KW. KW’s evidence was that he would often get sore muscles after playing sport and it was usual for him to go to the offender’s room for treatment, including have liniment rubbing into his sore muscles.
     

  3. Count 15, I accept, was the first specific occasion of this that he could remember. He had a rash on the inside of his groin from playing sport and went to the offender’s office. The offender asked him to go around to the other side of the curtain that separated the bed area from the office. He took the complainant’s trousers or shorts off, but his underpants remained on. The offender rubbed some liniment or Goanna Oil into the rash and when doing so deliberately touched his penis and testicles with either the back of his hand or his thumb and forefinger. That was the evidence that KW gave which was clearly accepted as deliberate touching by the jury. They are the relevant facts for the indecent assault offence which is count 15.
     

  4. Count 16 occurred the following year. KW gave evidence, which the jury obviously accepted, that one evening in the dormitory the offender was sitting on the top of a partition between the beds and reading a story. He said that the accused called him into his office to have a discussion and that the offender then touched him on his genitals and pushed his hand down to touch his own penis and testicles. The evidence would appear to be that both the offender and KW were clothed. This happened at night in the offender’s office when he was the dorm master.
     

  5. Counts 17 and 18 occurred at the beginning of the Easter school holidays in 1987. I accept from the evidence given by KW that he was forced to stay behind after school broke up for disciplinary reasons and that his punishment was to spread topsoil on one of the gardens in the school. He was being supervised to an extent by the offender. On the second day of this regime, after working in the garden he was in the dormitory with the offender, who was talking to him. I accept from KW’s evidence, clearly accepted by the jury, that the offender pulled down his zipper, pulled KW towards him, put one hand on his shoulder and the other on his head and put his penis into KW’s mouth. KW said that the offender’s penis hit the back of his throat and made him gag and feel like vomiting. The offender did not ejaculate, and the event lasted for a brief period. They are the facts relevant for count 17.
     

  6. The following evening a similar event occurred. KW had again finished in the garden for the day and that evening he was in the offender’s office. The offender again forced his penis into KW’s mouth, but this lasted a shorter time than the previous night, because his teeth dragged on the offender’s penis and he withdrew it from KW’s mouth.
     

  7. These are the two offences of homosexual intercourse with a pupil under 16. Obviously they are both very serious offences. KW was not just vulnerable in the general sense that all children are when dealing with adults, let alone adults in authority, but he was also at the school, away from his family, for punishment. He was alone in the dorm with the offender. The offences lasted for only a short period, which is one factor I take into account when assessing objective seriousness, but that does not detract from the seriousness overall.
     

  8. KW also provided a VIS for the court, which I have considered. In addition to this, his distress when recalling these events when giving evidence was obvious. He has been considerably damaged as a result of this ongoing sexual abuse by the offender. The contents of his VIS are distressingly familiar to the court, setting out the very sorts of impacts of child sexual abuse which for him have become serious. One glimmer of hope, however, that emerges from the VIS as follows:

“Since telling my truth I feel happier, I am glad I did it I feel I was finally believed. It is sad that it took so long for me to be believed, it took most of my life away”.

  1. Even though this statement is tinged with sadness and loss there is also some suggestion of resolution and improvement. It is to be hoped that this continues following the finalisation of these proceedings.
     

  2. The first indecent assault is relatively low in terms of objective seriousness in all of the circumstances given that they were both clothed and the touching was brief. The second is somewhat more serious, involving mutual touching. There should be a sentence of 12 months for sequence 15 and 18 months for sequence 16. Both of the homosexual intercourse offences are serious but taking into account all of the relevant facts I have concluded that the relevant sentence for the first of them, that is sequence 17, should be 4 years and for sequence 18, 3 years. If all of the offences involving KW were accumulated on each other that would give rise to 9 years and 6 months, which similarly to the process of reasoning involving CS, in my view is excessive. In the same way that I reasoned for CS, I indicate that had I been sentencing the offender for the offences involving KW alone I would have imposed an overall sentence of 5 years to take into account totality.
     

Count 19: Victim JM

  1. Count 19 is also a s 61E(1) offence involving the complainant JM. He was a boarder at Chevalier in year 7 in 1984 and the offender was his housemaster. He injured himself one afternoon after school playing sport and came back to the dormitory early to have a shower. As he came out of the shower he was only wearing a towel and the offender was there and offered to treat his sports injury. JM went to the offender’s office. The offender started to rub his sport injury, but then rubbed it higher and higher up his leg, breathing heavily, and in the words of JM, “started to babble”. The offender rubbed all the way up to JM’s genitals and touched and rubbed his genitals. He started by rubbing under the towel, but at one stage the towel fell off or to the side. When this was happening, other boys started to come back into the dormitory, so the offender stopped, went to another part of the office and came back with a picture of naked boys at various stages of sexual development. I accept that he said something to JM about his being at a particular stage of development by comparison with the pictures on the charge. This I accept was a ruse on the part of the offender to deflect from what he had actually been doing. JM, I accept, was confused and distressed about what had occurred and left the room crying.
     

  2. I have read and considered also a VIS prepared by JM for these proceedings. He too has experienced lifelong serious impacts as a result of the sexual abuse of exactly the type known and understood by the court. He makes particular reference to the impact that this abuse had on his faith and the confusion which arose from the context between what the offender had done to him compared to what he had been taught as part of a religious Catholic family that priests represented moral authority on earth.
     

  3. This was a relatively serious indecent assault, but below the middle of the range for such offences. There was no appropriate treatment, in fact, being offered and this was a ruse for sexual assault. Taking all of the overall matters into account I have determined that the appropriate penalty for this offence is 18 months.
     

Counts 20 & 21: Victim AS

  1. These two counts are both s 61E(1) offences involving the complainant AS. Count 20 occurred during 1984 and count 21 in the first half of 1985. AS was at Chevalier College in 1984 as a year 8 boarder and the offender was his dorm master. He stayed at the school until he finished year 12 in 1988. The morning routine in the boarding house was that the offender sounded a wakeup alarm to get the boarders out of bed. On these two occasions AS did not get up straight away, because he had an unexpected erection. He was at the time a pubescent boy. He was embarrassed and did not get up straight away. The accused approached him on the bed and started to wrestle him. He grabbed AS in various places and during the course of this wresting touched him on his penis in a way AS described as groping, so he got up and wrapped the doona around him so that it would stop. That is count 20.
     

  2. The following year there was an occasion when AS had an injury at rugby training. He went to the offender’s office to get some help. He showed him his knee and the accused told him to lie down on the bed in his room. He then closed the door and told him to take off his long pants, which he did, but left his underpants on. The offender then retrieved some ointment from somewhere in the room and started to massage his knee. He started to rub further up his leg and then rubbed his genitals with the back of his hand under the guise of treating his knee injury. AS felt very uncomfortable, and in the words he used in evidence he ‘freaked out’, jumped up and ran out of the room. He had to unlock the door to get out. This was count 21. AS did not give any evidence of other occasions apart from these two.
     

  3. They are both relatively serious incidents of child sexual assault in the category of indecent assault, 21 being more serious than count 20, because the offender was alone with the complainant in his room with the door locked. Both of them, however, lasted for a short period of time, did not involve extensive touching, it was outside clothing and there is nothing to suggest that the offender tried to prevent him from leaving in relation to count 21. Also, for count 21 it was in the guise of providing medical treatment. AS was entitled to trust him to assist him as dorm master and provide the treatment that he went to him for and not to abuse him.
     

  4. There is no VIS from AS, but he was obviously still distressed when giving his evidence and could remember the events 35 and 36 years later.
     

  5. For count 20 there should be a sentence of 12 months. For count 21, a sentence of 18 months. They are separate offences, but they should be regarded to be served concurrently with each other in the overall circumstances.
     

Counts 22 & 23: Victim SB

  1. Counts 22 and 23 are s 61E(1A) offences, namely, indecently assaulting the complainant SB, who was under 16 and under the authority of the offender at the time. Count 22 occurred between May 1986 and July 1987 and count 23 occurred between February and April 1988.
     

  2. SB went to Chevalier College in 1986 as a year 7 boarder and the offender was his dormitory master. He left the college in 1989. He gave evidence of a general contextual nature that the offender would come into the dormitory to get people out of bed in the morning if they did not get up in time. He would wrestle the boys and pull the blankets off them to get them out of bed. He said that this happened to him, and that the accused touched him more than once in the buttocks and groin area.
     

  3. In particular for count 22 I accept from SB’s evidence that on one morning during the period covered by the count the offender came in to get everyone out of bed. SB was tired and did not get out of bed straight away. The offender pulled him out of bed, grabbed him from behind in a bear hug and started tickling him. He fell onto the bed and the offender fell behind him. He moved his hands all over SB’s body, particularly concentrating on his groin and buttocks area. He held him with one hand and used the other hand in a way which SB described as groping his buttocks and groin. That is the specific evidence for count 22.
     

  1. Count 23 occurred in different circumstances. SB came back from a summer holiday suffering from what was called Pelican Lice Itch after swimming in a lake. The offender offered to put calamine lotion on the itch. SB went to his office for that purpose. I accept SB’s evidence, which was clearly also accepted by the jury, that the offender applied the calamine lotion to his groin and buttocks and rubbed it in, although the rash was, in fact, on his arms, legs and upper body. He rubbed the lotion into his testicles, penis and between his legs. He asked SB to rollover onto his stomach and then continued to rub the lotion into his buttocks and across his anus. He only used the lotion on his groin and buttocks area and not on the area where there was, in fact, a rash. I accept from the evidence that SB gave that he was very frightened following this offence, so much so that he spent the whole night sleeping or hiding in his locker. He gave evidence, which I also accept, that he tried to bring these events to notice in 1988 when he told his mother, who also gave evidence at the trial. She did not believe that a priest would behave in such a way and discouraged him from making a formal complaint at a time when other complaints were made in 1989. His wife also gave evidence at trial that he disclosed the abuse to her in 1995 at a time that he made a suicide attempt.
     

  2. He also prepared a VIS, which I have read and considered. Whilst not all of the contents of that statement were given in evidence at trial, because clearly some of it would not have been relevant to that stage of the proceedings, nonetheless there is evidence supportive of much of his VIS in the evidence given by his mother and wife. I accept that he too has been seriously adversely impacted by this abuse. Most significantly there is the evidence, which I accept, that he attempted suicide when he was 21, fortunately not successful. He has significant issues with trust, which is understandable, because he did try to bring this abuse to the notice of school staff at the time but was not supported. As I have said, his mother also gave evidence about the sorrow and to a degree shame she feels at not accepting his complaints fully at the time and feeling that he may have been exaggerating.
     

  3. At the time of the offending the offender himself was also in contact with SB’s mother, relaying instances of his misbehaviour at school, which no doubt had some impact on SB’s mother’s approach to the complaint that he made. This is an indication of the sort of manipulation that regrettably the court accepts is a hallmark of these sorts of offences committed by offenders like the one before me. SB’s relationship with his mother was damaged and has only recently started to heal. He has a supportive wife, but I accept that his relationship with her has also been difficult, because of the ongoing trauma of the sexual abuse. One of the saddest implications for him I accept is his decision not to have children, because of a fear of what might happen to them arising from his own experience.
     

  4. Taking all of the relevant factors into account for those two offences I have concluded that for count 22 there should be a term of imprisonment of 18 months, and for count 23 a term of imprisonment of 2 years. Again, in the circumstances of this overall sentence they should be effectively served concurrently with each other.
     

Counts 24 & 25: Victim ME

  1. Counts 24 and 25 are also s 61E(1A) offences and involve the complainant ME during the period January to May 1986.
     

  2. ME attended Chevalier in year 9 as a boarder and was there until he finished year 12 in 1989. The offender again was his dormitory master. He gave evidence, which I accept, that he found adjustment to boarding school very difficult and that was known to the offender.
     

  3. Count 24 occurred one evening in the dormitory when the offender called him into his office. He went into the office and sat on a chair. The offender went into the bedroom section of his office and came out with some photos of boys in various stages of puberty and asked him what stage he was at. ME pointed to a particular photo and the offender yelled at him that he was a liar. The offender reached down, pulled his pyjama shorts down and fondled his genitalia. ME said that he grabbed his genitalia and that whilst it was for a brief period, it felt like a long time. ME said he retaliated, spat in his face, punched him, got up and left. They are the facts relevant for count 24.
     

  4. Count 25 occurred on another occasion during the same period when ME was in his pyjamas in the dorm and the offender called him to come to his office. At the time ME apparently needed some assistance with pronunciation and speech and the accused told him that there had to be a mirror held up to his face to practice his pronunciation. That occurred, and as he was holding the mirror the offender pulled down his pyjama shorts and grabbed his genitalia. ME pushed the mirror away, spat at the offender, hit him and left.    
     

  5. These are the relevant facts for both of these counts involving ME. They all have the same relevant factors informing objective seriousness, of course, always bearing in mind that for this particular offence the fact of being under authority is already an element and not a separate aggravating factor. I repeat that there is a special degree of breached trust here. In addition to being in authority, the offender was not only a priest but a dormitory master. ME, and all of those complainants who were boarders for that matter, were especially vulnerable being away from home, no family to turn to for immediate help and only the offender to look to for assistance and support. Both of these offences are more than merely spontaneous episodes of sexual assault. The offender called him into his office on both occasions and engaged in a ruse to allow the sexual abuse to occur.
     

  6. ME also prepared a VIS for the court which I have read and considered. This abuse has also caused him lifelong adverse reactions and impacted on his wife and family. He is fortunate to have a supportive partner, and it is encouraging to note in his VIS his belief that over time he has, as he said, “Gained enormous emotional strength and resilience” as he proceeded on what he and other victims have described as the roller coaster of emotions and response to the sexual abuse of him by the offender and the fact that he has been constantly triggered when prominent cases of sexual abuse of children by clergy are publicised. It is to be hoped that that strength and resilience remain with him in the future.
     

  7. I have concluded that in the circumstances each of these offences should give rise to a term of 2 years imprisonment and each should be effectively served concurrently with the other.
     

Count 26: Victim MB

  1. Count 26 is a further s 61E(1A) offence, involving the complainant MB, which occurred between May and September 1988.
     

  2. MB started as a year 7 boarder at Chevalier in 1988 and the offender was his boarding master. One Saturday during this period he suffered an injury to the lower part of his thigh. Later in the day he was in the offender’s room with other boys when the offender asked if he would like some treatment for the injury and he said he would. He put the complainant up on his bed and removed his pants and underpants so that he was naked on the bottom half of his body. The other boys had been asked to leave the room by then. He then rubbed Goanna Oil into the injury on his thigh, but then rubbed further up into his groin area and rubbed him in that area of his body while he was naked. The injury was to the lower part of the complainant’s thigh muscle. He then stopped and the complainant left.
     

  3. The Crown put this count to the jury on the basis that the area of the body that the offender was rubbing in circumstances where the injury was to the lower part of the thigh muscle and where he had taken off the complainant’s lower clothing and rendered him naked on the bed, together with other arguments, including asserted tendencies, would allow for a finding by the jury that the touching, albeit not actually on the genitalia nonetheless had a sexual connotation and amounted to indecent assault. The jury’s finding of guilt of the accused for this count indicates that they accepted this as having been proved, they are thus the relevant facts for this offence.
     

  4. Because it is a child sexual assault offence it is serious. It also happened in the office of the offender when he had sent the other boys out of the room, and again, I accept that he used the pretence or ruse of providing treatment to actually sexually assault the complainant. It was brief, however, and seems to have ended without any further involvement. MB gave evidence that he never went back for further treatment following this incident.
     

  5. He also prepared a VIS for the court, which I have read and considered. He does not claim a significant impact on him over the years since the abuse occurred and he appears to have developed a degree of resilience. However, I accept that he has developed a significant distrust of people following the abuse and the aftermath, especially as he has now had to give evidence twice in relation to his experience. I accept that when he gave evidence in the current trial he found it a confronting and stressful experience. Overall, it seems to me that this offence should give rise to a term of 18 months imprisonment.
     

Count 27: Victim SM

  1. Count 27 is the last of the s 61E(1A) offences and involves the complainant SM and occurred between February and March 1989. SM was a year 7 boarder at Chevalier in 1989 and the offender was his boarding master. He also gave evidence of having trouble settling in at boarding school and being confused. His evidence was that he initially had a positive relationship with the offender, but then gave evidence of a general contextual nature that that relationship turned to sexual touching.
     

  2. SM’s evidence before the jury was difficult at times and he had a poor memory. He had also given evidence in previous proceedings in 1990. The Crown case for this count was that the accused rubbed the complainant’s testicles on his bare skin whilst he was in the accused’s room in the guise of providing medical treatment. Unlike for all of the other offences the accused admitted that he in fact, rubbed or massaged the complainant’s testicles on one occasion during this period, but that it was not for sexual gratification, but in the course of providing some relief for a condition involving an undescended testicle. The Crown put to the jury that they would not accept that there was any reasonable possibility that the touching was for anything other than sexual gratification and thus had a sexual connotation. By finding the accused guilty of this count the jury clearly accepted that this admitted touching had the necessary sexual connotation.
     

  3. SM also provided a VIS, which I have read and considered. Yet again it mirrors the many adverse and often lifelong consequences on individuals as a result of childhood sexual abuse, and especially so from people in authority like a priest or teacher or housemaster, into whose care young vulnerable children are placed in good faith by parents, who themselves had their faith in institutions like the church seriously eroded when they finally became aware or finally accept what had occurred to their children. The impact of institutional childhood sexual abuse often, as in the case of SM, extends beyond the victim himself and passes to parents who blame themselves for placing their children into the care of abusers. When those offenders are connected with faith-based institution this often erodes generations of religious faith and adherence. This is referred to by SM in his VIS and is the common experience of the District Court of New South Wales, which is unfortunately all too familiar with these consequences.
     

  4. I accept too that SM felt a sense of betrayal as a victim of child sexual abuse in the way he was treated when he first gave evidence in court in 1990. Having read some of the transcript of those earlier committal proceedings his view is understandable, as is his view that the legal system failed him then.
     

  5. As is well known, this Court has for many years now worked extensively to improve the way in which victims of childhood sexual abuse are treated and has been at the vanguard in Australia in introducing innovative systems to ensure that that is the case, whilst at the same time protecting the rights of an accused and ensuring that the rule of law generally is properly applied. The system is very different in 2021 than it was in 1990, and it is encouraging to read in SM’s VIS that he has praise for the police, lawyers and the legal team who have given him hope. For him, like all of the victims of these offences, it is to be hoped that even for those who have suffered the most, that one outcome of the finalisation of these proceedings will be a sense of relief and perhaps some closure, and that they will start to regard themselves as survivors of childhood sexual abuse not just victims of this offender.
     

  6. With all considered, I have concluded that count 27 should give rise to a sentence of 18 months.
     

Sentencing Factors

  1. The impact on each of the victims of these offences is a matter that I take into account when determining the appropriate sentence. It is different for each, and in some cases more serious and long lasting than for others. As stated previously, the trauma of sexual abuse on children is now well known to the court and has been well known to this Court for at least 25 years. It is not argued on behalf of the Crown, however, that there is evidence here that would allow for a finding of aggravation pursuant to s 21A(2)(g) and I do not make that finding.
     

  2. There clearly must be general deterrence factored into these sentences to take into account, at the very least, the Court’s experience of the impact of childhood sexual assault on individuals in the community and to send a strong message of the abhorrence of the community of child sexual abuse and a knowledge and understanding that those who would engage in this, even those who come to court to be sentenced after many years, will be subject to condign punishment involving relatively lengthy periods of imprisonment.
     

  3. Having made those findings overall then I must look to totality. I have already done that to an extent by indicating overall sentences which I would have imposed for the groups of offences involving the complainants CS and KW, and also indicating that where the offender was being sentenced for more than one offence involving the same complainant that those sentences should be served concurrently.
     

  4. Taking into account those findings already made and then using those as a basis of calculation, if each of the individual sentences, or individually nominated overall sentences was accumulated on each other it would give rise to a sentence of approximately 25 years. In my view, that is excessive to represent the totality and take into account all of the relevant principles of sentencing referred to s 3A of the Crimes (Sentencing Procedure) Act 1999 and all of those other factors to which I have already referred. I have ultimately concluded that there should be an overall sentence of 15 years with an overall non-parole period of 10 years.
     

  5. There are some special circumstances, including that this is the offender’s first time in custody, his age and the fact that this period of imprisonment will represent the end stage of his life, that he will likely serve his non-parole period in more onerous conditions because of the nature of the offending, his age, deteriorating health and ongoing COVID-19 restrictions in custody. I will be imposing an overall non-parole period of 10 years to take those matters into account.
     

  6. I propose to deal with the sentences by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 with each of the indicative sentences that I have already announced in this judgment, and which will be ultimately reflected in the order that I make and sign.
     

Formal Sentence Orders

  1. For those reasons then I make the following formal orders to the extent that I have not already done so:
     

  1. The offender is convicted for each of the 26 counts of the sentence.
     

  2. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 he is sentenced to a non-parole period of 10 years commencing 14 July 2021 and expiring 13 July 2031, with parole thereafter of 5 years commencing 14 July 2031 and expiring 13 July 2036, giving rise to an overall term of imprisonment of 15 years, commencing 14 July 2021 and expiring 13 July 2036.
     

  3. Indicative sentences are as follows:
    Count 1: 12 months
    Count 2: 18 months
    Count 4: 18 months
    Count 5: 18 months
    Count 6: 12 months
    Count 7: 12 months
    Count 8: 12 months
    Count 9: 12 months
    Count 10: 18 months
    Count 11: 3 years
    Count 12: 4 years
    Count 13: 12 months
    Count 14: 12 months
    Count 15: 12 months
    Count 16: 18 months
    Count 17: 4 years
    Count 18: 3 years
    Count 19: 18 months
    Count 20: 12 months
    Count 21: 18 months
    Count 22: 18 months
    Count 23: 2 years
    Count 24: 2 years
    Count 25: 2 years
    Count 26: 18 months
    Count 27: 18 months
     

  4. Offences on the s 166 Certificate: Sequences 22 and 23 are dismissed.
     

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Amendments

18 November 2022 - Error in catchword: 'sequel' amended to 'sequelae'

Decision last updated: 18 November 2022

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R v Blanco [1999] NSWCCA 121