R v Connolly

[2001] TASSC 92

[2001] TASSC 92

CITATION:             R v Connolly [2001] TASSC 92

PARTIES:  R
  v
  CONNOLLY, Paul Anthony

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  213/2001
DELIVERED ON:  10 August 2001
DELIVERED AT:  Launceston
HEARING DATE/S:  6 August 2001
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal law - Particular offences - Other offences against the person - Sexual offences - Sentencing - Indecent assault by priest 30 years previous - Time between offence and sentence - No penetration - Effect of sanction on victim and the community.

Dinsdale v R [2000] HCA 54, applied.
R v F 74/1998; Abel v R A94/1994, followed.
Aus Dig Criminal Law [175]

REPRESENTATION:

Counsel:
             Crown:  J P Ransom
             Accused:  G R Stephenson
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  G R Stephenson

Judgment ID Number:  [2001] TASSC 92
Number of paragraphs:  32

Serial No 92/20001
File No 213/2001

THE QUEEN v PAUL ANTHONY CONNOLLY

REASONS FOR JUDGMENT  SLICER J
  10 August 2001

1. Paul Anthony Connolly has pleaded guilty to seven counts of indecent assault contrary to the Criminal Code, s127. The assaults occurred between June 1971 and June 1973. The complainant was born in November 1956.

1. The acts of indecency were not, by comparison with other conduct frequently before the courts, as physically intrusive as they could have been.  No physical violence was used, there was no penetration in the sense that the term is ordinarily used.  It is relevant that the complainant continued association with her abuser for some time after the impermissible conduct.  The above is stated not as a means of lessening the impact of the conduct but as an attempt to define the correct basis of punishment and as a means of focusing the minds of both those directly involved and the community at large on the central issues which ought determine sanction and which result in the imprisonment of one who has already suffered and has for many years given much to our community.

1. Father Connolly was born in 1935.  Following study at university he entered a seminary at the age of 23 and after eight years' study was ordained a priest of the Catholic Church and allocated the parish of New Norfolk in Tasmania in 1965 where he served for six years.  It was during this period that he met D, then aged 9.  That contact was through her family, devout members of his congregation.  The contact continued and in the course of time D joined a Catholic youth group which on occasions made visits to Strathgordon.  During one of those visits in the latter half of 1971 a friendship developed which in turn resulted in his "caressing her body and breasts with his hand" (count 1) and "putting his head up into the front of her t-shirt and moving his hand around her upper body" (count 2).  At that time D was aged 14.

1. In November 1971 Father Connolly was transferred to the parish of Strathgordon.  Between January and December 1972 on separate occasions during visits by D to Strathgordon she was further assaulted by him "kissing her and placing his tongue within her mouth" (count 3) and "rubbing his hands over her legs, breasts and back after removing her night gown and pants" (count 4).  D was aged 16.

1. Between January and June 1973 D again went to Strathgordon.  Her visits were voluntarily made.  On three occasions during the course of one weekend the offender committed acts of indecency "by removing her night gown, putting his arm about her and caressing her breasts and vagina" (count 5); "placing his fingers into her vagina" (count 6) and "washing her naked body in the shower" (count 7).  D was aged 16.  In relation to count 6 the Crown stated that the act of penetration, whilst amounting to an invasion of the body, was that of "a parting of the labia" rather than "an entry to the vagina".  Lest it be thought that the difference is artificial many studies have shown that entry into the inner body is regarded by many women as a more traumatic intrusion.  The sentencing process attempts to reflect that distinction.

1. The continued visits by D were partly a commitment to her religion and a reflection of her trust in the offender.  On the material before the Court the offender did not place pressure on her to attend and accordingly his conduct can be seen as opportunistic rather than that of a predator.  However, the age difference between the two was that of 22 years. 

Relevant principles

1. The principles relevant to the determination of penalty have been stated in R v F 74/1998 and canvassed in the comments on sentence made in R v Daniels made on 28 May 1999.  Those principles include:

-          passivity

-          effect on victim

-          time between occurrence and sentence

-          law and complexity of relationship

-          subsequent conduct

-          response of victim.

This determination adopts these principles and attempts to give effect to them.

Post conduct relationship

1. Following the events giving rise to counts 5, 6 and 7, D and Father Connolly remained in contact.  He served in a number of parishes and on occasions she would visit him at his parish or see him at events mutually attended.  Her continued contact was understandable yet full of complexity.  She remained committed to her faith and retained a bond with a mentor albeit one who had betrayed her.  In 1983 she married and Father Connolly officiated at the ceremony.  That event shows both the complexity of the relationship and her dilemma.  Her dilemma was articulated by a sexual assault worker who, in an extremely useful and objective report, stated:

"There is a sense that this contact was important as a part of D's need to remain in personal denial.  It seems that by maintaining the connection to Father Connolly 'normalised' the relationship to others, the prospect of having to reveal the truth was a greater fear than the continuing maintenance of the artificial reality of Father Connolly's relationship to her.  Father Connolly in fact officiated at D and S's marriage ceremony."

It would have been difficult for D to have rejected an expectation of others that Father Connolly would conduct her wedding.  To do so would have been to invite disclosure.  The complexity was that the relationship went beyond sexual contact.  Independent of that contact it is clear that the offender had a benevolent interest in the well-being of D, and she had a regard for him through respect for both status and personality.

Conduct of offender

1. Nothing can excuse the conduct of the offender.  He was a priest and as such trusted by D and her family.  He betrayed the tenets of his faith and his status within the community.  D was aged between 14 and 16 at the time of these events.  Yet his conduct did not descend into abject abuse.  The following extracts from the statement of D, couched in the sparse language of legal documents, show the humanness and frailty of human conduct:

"When I was 16, in ... 1973, Connolly attended a church gathering called Eucharistic Congress, and on his return when I next saw him he gave me a coloured cross pendant on a chain as a gift.

I was alone on another trip with Connolly, he put one or two fingers between the labia of my vagina.  I asked him if he was still a virgin.  By that I meant had he placed his penis into my vagina.  He responded, 'No D, my penis is no where near your vagina'."

And in relation to count 5:

"I had a long pink nightie on and he took it off me while I was standing in his room, and he told me to put my hands up behind my neck so that he could look at my breasts and body.

He then laid me down on his bed on my back, and got into bed with me and put his arms around me and said ,'I never thought it would be so lovely to hold a woman'."

The material suggests infatuation and desire rather than use of another as an object.  It differs from physical coercion and disdain for the victim.  Yet it remains a betrayal.

Effect on victim

1. The effect on the victim can be little understood by an outsider.  An outsider can recognise that the harm caused is deep and ongoing and such is recognised by the Court.  The following is an attempt to state that effect in context.  It relies heavily upon the primary material placed before the Court on behalf of D and an analysis made by a sexual assault worker.

1. D was a naïve and vulnerable child.  She was deeply religious and had "complete unquestioning trust in the priests of the Church".  She regarded Father Connolly "as an 'idol' and 'cool'."

1. The report provided by the Sexual Assault Service described the response of D during counselling sessions in the following terms:

"D was able to identify her position as a member of a large family, with working parents, her naivety, her desire to please everyone, the role and influence of the Church, the secrecy, shame, loneliness and silence and the unquestioned loyalty as the contributing factors to the innocence that was then exploited.  The fact that someone outside her ordinary childhood experience offered and demonstrated his perceived love for her through an 'intense focus' on her.  A continual reference to her that she was 'special' was, as D stated, 'the power of Father Connolly, when I was nine'.  She explained, 'I was so far removed from normal emotional and mental development under his control that if he told me black was white, I would have believed it."

1. In November 2000 she disclosed to her husband her history of sexual abuse.  He immediately confronted Father Connolly who accepted responsibility.  That disclosure whilst a necessary part of the healing process, has impacted on D's marriage, children and extended family.  That process of healing has some way to go.  The conclusion reached by the sexual assault worker that:

"D will need to continue counselling as there are issues that still need resolution.  It is quite possible that D is not yet aware of the [sic] some of the issues that will challenge her in the future.  She described the recovery process as being like peeling an onion.  'When you remove one layer another is found.'  D is struggling to come to terms with the immense damage that has been done to her.  She believes that the sexual assaults have impacted on her whole 'self'.  She expresses the opinion that Father Connolly forced her to act against her core beliefs about herself and the world and that this is devastating.  She expresses the view that his actions took away her innocence, that this can never be regained and the thoughts leave her with a deep sense of loss.  She has times when she experiences feeling so dirty that no amount of water can wash her clean.

Child abuse can be defined in terms of physical, sexual and emotional damage.  Some form of emotional abuse is always present in the crimes of child sexual assault and some say that that [sic] the sexual abuse of children invariably attacks their soul.  In the case of child sexual assault by a priest there is an absolute betrayal that can be likened to abuse by a parent.  In fact, D has stated she saw him as a father figure.  A priest holds an authoritarian position in society that is generally highly respected and is centred on compassion and caring."

Disclosure and response

1. In November 2000 D told her husband of the misconduct and the following day her husband rang Father Connolly and stated the allegations.  The reason for disclosure would appear to be as a result of her desire to have an honest relationship with her husband.

1. When confronted with those allegations Father Connolly admitted misconduct.  A complaint was made to police and on 21 December 2000 he was interviewed.  Acting on legal advice he declined to answer questions.  A complaint was filed on 2 February and the offender was committed to trial on 4 May 2001.  The case for the prosecution was necessarily word against word.  The response of the offender to D, and the early plea entitles Father Connolly to the mitigating effect of:

-          demonstration of remorse

-          co-operation

-          early plea

-          facilitation of proof, in that the plea did not represent an acceptance of the inevitable.

Effect of plea

1. Father Connolly is now aged 66 years.  When confronted by D's husband he readily admitted responsibility for his conduct.  He was brought before the court in February 2001 when the matter was adjourned until May.  He did not require the examination of witnesses at committal and was remanded to appear in this Court on 13 June 2001.  The indictment was filed on 30 May 2001.  He entered a plea of guilty on 6 August the first available date during these sittings.  The plea avoided the necessity of the complainant to give evidence.  The effects of the trial process have been outlined in an article, The Effects of Child Sexual Abuse (1992) 66 ALJ 186, by Professor Oates., which although directed at the effects on young persons is relevant to adult victims of abuse. In that article he stated:

   "Another area which seems to cause problems for sexually abused children is the investigation and court hearings.  Several authors have written that multiple interviews and legal interventions can affect the child adversely.  In one study involving 173 cases, more than 1,000 court appearances were required.  These factors can cause extra stress, resentment and tension for the children as well as their parents.  It is particularly difficult for a child to testify against an abuser who may have been a trusted friend or teacher.  The harmful effects on young children of repeated questioning by multiple authorities in the adversarial proceedings involved in criminal court have been well documented.

   A 1983 English study carried out the only systematic research on the effects of the court upon sexually molested children.  These researchers found that when they compared child sexual assault victims whose cases went to court with a sample of sexually abused children whose cases did not go to court, 82 per cent of the group which went to court showed overt signs of disturbance compared with 44 per cent of the group which did not go to court.  However, their results may have been biased as the cases which went to trial were more serious cases.

   One study, which surveyed judges rather than children and their families found that 84 per cent of the judges surveyed felt that children who testified in court were emotionally traumatised by this.  This opinion is widely held by therapists and other mental health professionals who work in the field of child sexual abuse in the United States, with some feeling that the effects of the social and legal systems may be as damaging or even more damaging in some cases than the abuse itself, with a considerable amount of psychological damage stemming from the way the situation is handled by parents, medical personnel, law-enforcement officers, courts and social workers.  However, it would be wrong to blame the system for the adverse effects of child sexual abuse.  Adverse psychological sequelae are common following child sexual abuse although there is evidence that in some cases the investigations and court appearances which follow may exacerbate these symptoms if they are not done with due consideration to avoiding further emotional stress to the child."

   The entry of the plea in this case is a significant factor in the assessment of penalty.

Sanction and healing

1. It is often said that involvement in the court process and the imposition of sanction can assist a victim to recover from the effects of abuse.  As was stated in R v F at 2:

   "The resolution by court process can either assist or inhibit well-being.  Sanction which is inadequate in the eyes of the victim can produce a heightened sense of betrayal by the "system".  Retribution which exceeds the victim's expectation can exacerbate guilt in that the act of reporting and involving the criminal justice system has harmed a family member for whom some affection or emotion remains, despite the criminal conduct."

2. The purpose of sanction must take into account the community's interest in this area of law and the recovery of the victim.  Those issues are concisely stated by Professors Bowman and Mertz in an article entitled A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy (1996) 109 3 Harv L Rev 551 when they stated:

   "Last, but certainly not least, the community at large has substantial interests in this area of law, including (1) the deterrence of child abuse, (2) the rehabilitation of adult survivors who without treatment may live less productive lives, become abusers themselves, or possibly engage in violent crime, (3) the appropriate use of the courts, and (4) the maintenance of families.

   First, the community has an interest in deterring child abuse by calling abusers to account and by encouraging mental health professionals to investigate and to intervene in situations of suspected abuse.  Mandatory child abuse reporting laws in every state illustrate the strength of this public policy interest.

   Second, the community has an interest in the rehabilitation and treatment of adult victims of childhood abuse, given the apparent correlation between past child abuse and crime.  Additionally, many abusers have themselves been sexually abused in childhood.  To stop this cycle of violence requires at least two types of intervention: first, calling abusers publicly to account in order to stop them from abusing, to deter others, and to make it clear that society will not condone such behaviour; and second, treating children wounded by abuse before the pattern is repeated in the next generation.

   …

   Fourth, and finally, society also has an interest in protecting families from disruption."

3. In this case D has stated through Crown counsel that "she doesn't seek retribution".  The plea of guilty itself vindicates her decision to make disclosure and validates her self-perception that she ought have no "shame" concerning the events many years previous.

1. During the course of counselling D expressed concern about "brainwashing".  If it is of any assistance to D in understanding these events the Court's analysis is that the conduct was a product, not of "brainwashing" in the sense that the term is commonly used or systemic, but of human frailty, emotional engagement and abuse of power, age and status.

1. The sanction to be imposed will reflect the need for some form of retribution and vindication.  That is the responsibility of the Court and not that of the victim.  It is the responsibility of the Courts to impose sanction according to both criminality of conduct and its consequences.

Sanction and the community

1. It is right and proper that the community requires appropriate retribution in matters of this nature.  It is not right and proper that unreasoned calls for vengeance by sections of the community are heeded by the courts which remain representatives of the community as a whole.  (Inkson v R (1996) 6 Tas R 1).

1. In dealing with events long ago there is less need to have regard to the principles of general deterrence.  The extent and nature of sexual abuse, long-hidden, is well known in the community and the likely consequences of conduct understood.  Nevertheless, the penalty reflects the community's legitimate interests in punishing criminal conduct of the nature which is the subject of these proceedings. 

Sanction and the offender

1. Father Connolly is now aged 66.  He has long served his faith and his community.  He has held many positions of responsibility and done much good.  The Court was told that since public disclosure he has received letters and cards of support and compassion from over 200 people.  These events have had a devastating effect on his standing, reputation and inner-being.  He has been made aware in written form that, "were he to be found guilty of the charges against him, it would bring to an end his active ministry as a priest in the Archdiocese".  His life once marked by service and contribution will forever be marred by his guilt.

1. The penalty to be imposed takes into account that the offender has already experienced punishment.

Conduct long ago

1. Nearly 30 years have elapsed between the occurrence of these crimes and the date of sentence.  In such cases the courts are entitled to take into account a range of mitigating factors including the type of life led by the offender subsequent to the crime as being evidence of rehabilitation (Smith v R (1981 - 1983) 7 A Crim R 437) the effect of imprisonment so long after the event (Crawley v R (1981) 36 ALR 241) and the disintegration of the personal life of the offender since exposure (R v Todd [1982] 2 NSWLR 515). The lapse of time has been regarded as relevant in this State. In his comments in passing sentence in Brown (3 September 1986), a case involving unlawful sexual intercourse, Green CJ regarded the lapse of time as significant, stating:

"'In this particular case I am also strongly influenced by the fact that the crimes were committed some twenty years ago.  That is a fact which must be given considerable weight, particularly when, as in this case, the delay in prosecuting the matter has not been caused by any action on the part of the accused, such as fleeing the jurisdiction.'

A similar approach was taken by Zeeman J in Rimmer (9 July 1997), and Underwood J in Hoskinson (19 June 1989) and the principle accepted by the Court of Criminal Appeal in Abel v R A94/1994."

1. However, regard is also had to the countervailing factor that the lapse of time has significantly affected the psychological health of the complainant.

Consistency of sentence

1. I imposed a 12 month sentence, three months of which were suspended, on Louis Daniels on 28 May 1999, a matter which had some similar characteristics as here.  I regard this case as warranting a slightly less severe penalty, in part because of age and in part because of a difference in the form of conduct, involving, as it did, acts of penetration.

Conclusion

1. It is relatively easy to identify and state the principles relevant to sexual conduct committed many years previous.  It is less easy to achieve their synthesis in this complex area of human behaviour.  Whilst sanction must reflect compassion for the victim and understanding of the offender resolution of those competing demands is often impossible.  In the circumstances of this case the Court believes that an immediate custodial sentence is required.  Suspension of portion of that sentence accommodates the principles affecting the interests of the offender (Dinsdale v R [2000] HCA 54).

1. The appropriate penalty is one of eight months' imprisonment, four months of which will be suspended.

Orders

1. The following are the orders of the Court:

(1)Paul Anthony Connolly be convicted of the crimes of indecent assault.

(2)Paul Anthony Connolly be sentenced to a term of imprisonment for a period of eight months, such sentence to commence as and from 6 August 2001.

(3)That the operation of the last four months of such sentence be suspended on condition that Paul Anthony Connolly be of good behaviour for a period of three years.

1. The victims of crime compensation levy of $350 is to be paid within six months of the date of release from prison.