R v Farrell

[2018] NSWDC 327

District Court

New South Wales

Medium Neutral Citation:	R v FARRELL [2018] NSWDC 327
Hearing dates:	5 October 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time custodial sentence – for complete orders see [70]-[71]
Catchwords:	CRIMINAL - Sentence – sexual assaults of altar boys by a priest – historical crimes – breach of trust – totality – aggregate sentence – pre-existing aggregate sentence – special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Fisher (1989) 48 A Crim R 442 Hammoud (2000) 118 A Crim R 66 Pearce v The Queen (1998) 194 CLR 610 R v JM [2014] NSWCCA 297 R v XX (2009) 195 A Crim R 38
Category:	Sentence
Parties:	Regina John Joseph Farrell
Representation:	Counsel: Mr B Rowe (Crown) Mr L Brasch (Offender)     Solicitors: NSW Director of Public Prosecutions (Crown) APJ Law (Offender)
File Number(s):	2015/186280
Publication restriction:	No publication of any information tending to identify the complainants.

Judgment

INTRODUCTION

1. HIS HONOUR: John Joseph Farrell appears today for sentence in relation to a number of offences committed by him between November 1981 and December 1983 at Moree and Narrabri when he was a priest working primarily at St Francis Xavier Catholic Church at Moree.

2. The victims in each instance were school children who attended the local parish school at Moree, St Philomena’s, and who were also altar boys at the church where the prisoner worked as a Deacon then a Priest.

3. In respect of the victim DW and the victim DJ, (with the exception of one count relating to DJ) the prisoner is to be sentenced having pleaded not guilty at his trial conducted in March and April 2018. The victim DW gave oral evidence at the trial. DJ, who was deceased, had complained of the prisoner’s conduct towards him in 1987 but the prisoner after being charged was discharged at committal in 1988. DJ’s evidence at the committal proceedings was tendered in the trial before me. The charges relating to the victim MR were listed for trial on 11 April 2017, but the prisoner pleaded guilty on that date before another Judge to the counts of indecent assault relating to him.

4. On the first day of the trial conducted before me in March/April this year, the prisoner pleaded “guilty” to Count 1 on the indictment, an allegation of indecent assault concerning DJ. He pleaded “not guilty” to the remaining seven counts concerning that victim, which included offences of indecent assault and sexual intercourse without consent of a person under the age of 16 years. The offences were committed over a 24 hour period just before Anzac Day 1983. The allegations of DJ were revived after DJ had died and when the prisoner was charged with highly similar offences against a large number of altar boys from Moree committed during the early 1980s. Most of that offending was dealt with by his Honour Judge Zahra SC on 2 May 2016. The offences against DJ were contemporaneous with those other offences.

5. The various offences for which the prisoner is to be sentenced, with the maximum penalties and the range of dates within which they occurred are set out in the Table of Offences which is annexed as Appendix A.

6. Although the matter was not the subject of lengthy discussion in the submissions relating to sentence, I propose to give the prisoner a 5% discount for the utilitarian benefit of the plea of guilty in respect of the one count relating to DJ, to which the prisoner pleaded guilty before me, and 10% for the five counts relating to MR to which he pleaded guilty last year before another Judge. There was hardly any utilitarian benefit in the plea of guilty as to DJ. All of his evidence had been given 30 years before and it was reread for the trial. In context the reduction of sentence is somewhat academic, particularly given that the most serious offending with which I am concerned was the subject of pleas of “not guilty”. “Totality” principles will demand considerable overlapping of sentence for the offences for which I impose sentences amongst themselves but also to some extent with sentences imposed by Judge Zahra SC.

BACKGROUND

7. The offender John Joseph Farrell was born 7 July 1953 and is currently 65 years of age. The offender was ordained as a Catholic Priest on 21 September 1981 and worked in that capacity at a number of locations in New South Wales including Moree, Tamworth and Merrylands.

8. The offender underwent his theological training at the St Columba's College Springwood and St Patrick's College Manly between 1974 and 1980. The offender was ordained as a Deacon of the Catholic Church on 28 November 1980 and undertook an appointment as a Deacon in the Moree Diocese between May and July 1981. The offender was ordained as a Priest on 21 September 1981, and commenced the role of Assistant Priest of the Moree diocese on 11 November 1981. The offender continued working in the Moree diocese until 31 July 1984, when he was transferred to the East Tamworth Diocese.

9. Following a number of complaints relating to ‘inappropriate behaviour', the offender was restricted in his clerical activities and was defrocked in 2005.

10. On 2 July 2012, the 'Four Corners' television program (ABC) televised a report entitled 'Unholy Silence', where it was alleged that senior members of the Catholic church concealed serious sexual assaults committed by a former priest identified only as 'Father F’. A number of victims and their family members were interviewed on the program, provided information about offences committed by 'Father F' towards 'altar boys' whilst he was working in the Moree and Parramatta parishes. Subsequently, there were a number of other media articles relating to these incidents, including newspaper, television and radio reports.

11. As a result of the media interest, a number of persons came forward to police with information relating to the offender and Strike force Glenroe was established by the Sex Crimes Squad - State Crime Command. A number of victims and witnesses were identified and statements obtained. This investigation has confirmed through a number of sources that 'Father F' is the offender, John Joseph Farrell. This is in the context of DJ having made allegations, for which the prisoner was charged in 1987, but, as earlier indicated, he was discharged at committal after DJ gave evidence. That evidence was available at the prisoner’s trial.

THE FACTS IN RELATION TO THE MATTERS FOR SENTENCE

12. The facts as I find them are from the evidence the complainant DJ gave at the committal, not from his statement. This is the way the matter was left to the jury. The victim DJ was 11 years of age at the time of the assaults upon him. He made a police statement dated 23 July 1987 which alleged that the prisoner had sexually assaulted him during a weekend away to Narrabri from Moree when he was eleven years old. DJ did provide a date but recalled that he watched a movie on television about 'Butch Cassidy and the Sundance Kid'. Evidence has established that a movie of this type was aired on 23 April 1983 on a local television network. The prisoner had travelled to Narrabri from Moree taking DJ as his altar boy for services at Narrabri on the Saturday evening and also in association with an Anzac Day service.

13. As to Count 1 in the indictment presented in my court, this was an offence of indecent assault. During the car ride from Moree to Narrabri whilst driving the victim, the prisoner attempted to unzip the victim's pants and was unsuccessful. The offender said "can you undo that for me?" and the victim undid his trousers. The offender then fondled the victim's penis and testicles. The victim stated that he was "jerking me and rubbing it, and playing with my balls". The victim asked him to stop and the offender said, "Why?" and continued to touch the victim. This conduct continued until they arrived at Narrabri. The offender removed his hand and said "You can do them up now". The victim complied and zipped up his pants. During this journey the prisoner told the victim that he was going to be “the Pope” one day, no doubt to impress the naïve victim.

14. Count 2 was an offence of sexual intercourse without consent. This was the third event the victim described in his evidence, the second in his statement. The offender took DJ to the Catholic Presbytery in Narrabri after Mass on the Saturday evening. While they were getting changed in a room they shared, the offender told DJ they would stay there to lie down and rest. The offender lay down on the bed and said "Come and lie down here". The victim lay down on the offender's bed next to him. The victim was wearing only his underpants and shorts. The offender began playing with the victim's penis and his testicles. He then leaned across and began to suck the victim's penis. The victim stated in his statement that he sucked and played with his penis for about ten minutes.

15. In respect of Count 3, the offender then told him to roll over onto his stomach and the victim complied. The offender got on top of the victim and pulled his legs apart and began to have penile/anal intercourse with him. This caused the victim immediate pain and he began to cry and said "Stop it”…”because it hurt". The offender did not say anything but only grunted. This continued for about 10 minutes after which time the offender pulled his penis out of the victim's anus and started touching himself on the penis and groaned. The victim buried his face in the pillow and cried.

16. Count 4 was another count of indecent assault. The offender continued to lie next to the victim and touched his penis and testicles. The victim asked if he could watch a movie called 'Butch Cassidy and the Sundance Kid' but the offender said they could go down later to watch it. The victim stayed, the offender put his finger in the victim’s anus (Count 5) and then hopped back on top of the victim and penetrated his anus with his penis (Count 6). The victim felt immediate pain again and began to cry.

17. Afterwards, the victim again asked about the movie and the offender allowed the victim to get dressed. They both went downstairs to watch the film. After the movie finished, two other men present including the resident priest present engaged the victim. The offender and the victim went back to their room and got into their separate beds.

18. In the statement he gave to police, the victim stated the following morning they both got up and drove to the Church where the offender did the service. After they had finished, they were in a room at the back of the church when the offender said "Come and sit here" and patted his knee. The victim sat on the prisoner’s knee and the offender put his hand down the down the front of the victim's pants and played with his penis and testicles “for ten to fifteen minutes”. In his evidence he said this occurred at the church at West Narrabri before he was sexually assaulted at the Presbytery and was the second event he described in his evidence. This constituted Count 7, an indecent assault.

19. During the car journey on the drive back to Moree, after a visit to a property in the Pilliga Scrub, the offender undid the victim's pants zipper and fondled his penis and testicles. This is Count 8, another count of indecent assault. The victim said “Stop it…It tickles”. The offender continued touching him and said "Did you have fun?" The victim said "Yeah", but he did “not mean it”. They drove back to Moree. The offender dropped the victim off at his home, speaking to the victim’s mother before he left. He was subsequently a guest of the parents for a meal causing concern to the victim.

20. The victim DW was aged between 10 and 12 at the time of the offences committed against him. He attended St Philomena's Catholic School in Moree between 1980 (Year 3) and 1983 (Year 6). In late 1981, the victim commenced duties as an altar boy at the St Francis Xavier Catholic Church (which was attached to the school). The victim's duties as an altar boy included helping the local priests with preparing and completing mass. Between 11 November 1981 and 31 December 1983, the victim invited the offender to come around to his house and watch a video on his new VHS player, along with one of the victim's friends from school. The offender was in the lounge room with the victim and the young male, when the offender held up a piece of string with a noose on one end. The offender asked the victim what it was. The victim stated that he did not know, and the offender said, 'It's what the Germans used to control little boys'.

21. The offender put the string noose over the victim's penis and genitals. The offender walked around and pulled the string (whilst it was still attached to the victim's penis and testicles) and the victim crawled around behind him on the ground on his hands and knees. The accused allegedly did the same to the other young boy. The conduct towards DW is Count 9, an offence of indecent assault.

22. Between 11 November 1981 and 31 December 1983, the offender and the victim were at the St Francis Xavier Catholic Church in Moree. The victim was there performing duties as part of his role as an altar boy, doing odd jobs and cleaning. There was nobody else in the church at the time. It was during the weekend. This offence occurred about a week after Count 9. The victim was aged between ten and twelve years of age at the time. The victim stated that he was cleaning up the church. The victim was up on the altar when the offender moved up behind him, put his hand on his shoulder and pushed him against the altar. The offender pulled the victim's pants down and inserted his erect penis into the victim's anus. The victim screamed out that it hurt, and the offender then stopped. This sexual assault constitutes Count 10. The offender again inserted his erect penis into the victim's anus again. This is Count 11, a crime of sexual intercourse without consent. The victim struggled. The victim gave evidence that he was pretty sure it “didn't last too long”. The offender told the victim that if the victim ever told anybody about the offence then he could “hurt them”. The victim immediately pulled his pants up and ran from the church and back home. The victim never went back to the church after this offence. He first told his mother what had happened “in early 2000”.

23. The facts in relation to MR are agreed and are as follows: The victim, MR, was aged between 11 and 13 at the time of the offending against him. He attended St Philomena's Catholic School in Moree between 1975 (Kindergarten) and 1982 (Year 6).

24. In late 1981, the victim commenced duties as an altar boy at the St Francis Xavier Catholic Church.

25. The crimes in relation to MR are all “indecent assaults”. Between 1 January 1982 and 31 December 1982, the offender took the victim by car to the Moree Drive-In Theatre to watch a 'Monty Python' film. Also present in the car was another young male. The victim was aged between eleven and twelve years of age at the time. The victim sat in the front passenger seat and the offender sat in the driver's seat. During the movie, the offender reached across with his left hand and patted the victim on his upper right thigh twice. The offender kept his hand on the victim's upper right thigh until the victim pushed his hand away. This is the 13th count on the indictment relating to him with which I am concerned.

26. Approximately five to ten minutes later, the offender reached across with his left hand and placed it onto the victim's upper right thigh (closer to his groin). The offender kept his hand there and used more force than during the first incident. The victim again pushed the offender's hand off his leg. This is Count 14. Approximately ten minutes later, the offender reached across with his left hand grabbed hold of the victim's right inner thigh, so that the outer part of his hand was touching the victim's groin. The offender squeezed the victim's thigh and the victim pushed his hand away. This is the 15th count.

27. As to the 16th count, between 1 October 1982 and 31 October 1982, the offender and the victim were at Mount Seaview for a St Philomena's School Year 6 excursion. The victim was twelve years of age at the time. During the school camp, the offender gave the victim a hug and "cuddled" him. The victim felt the offender's erect penis pressing into him. The victim stood back and pointed to the offender's groin and asked "What's that?" The offender said, "Oh that's something in my pocket".

28. Between 1 January 1982 and 31 December 1982, the offender and the victim were in the vestry of the St Francis Xavier Catholic Church, Moree. The victim stated that this was likely a Saturday night before the 6.30pm mass. He believed it was approximately one month after the offences at the Moree Drive-In Theatre (Counts 13-15 in the MR indictment). The victim was aged between eleven and twelve years of age at the time. The offender said, “Come over here” and the victim walked over to him and sat on the offender’s lap. As he was sitting down, the offender put his hand under the victim. When the victim sat down, he was actually sitting on the hand of the offender. From this angle, the offender was touching the victim's anus with his hand and his testicles with his index finger. The victim remained sitting like this until he heard a noise outside the room. This caused the offender to stand up and move the victim from his lap. This is the 17th count.

29. The offences committed against DJ and DW to which the prisoner pleaded “not guilty” are graver than the offences committed against MR, as they involve in each case, multiple offences of forced sexual assault of a child, in the case of DJ in a Presbytery and an indecent assault in a church. In the case of DW a humiliation in his own home and two connected but separate “rapes” at the altar of a church.

OTHER OFFENDING OF THE PRISONER

30. The sentencing of this offender occurs in a wider context which properly puts the character of the offending with which I am concerned in perspective. The prisoner was arraigned before his Honour Judge Zahra SC on 2 February 2016 in relation to an indictment containing 17 counts. He was found guilty of 10 of those counts, each of the charges being counts of “sexual assault” in detail I will provide later. Before that trial commenced, the prisoner had pleaded guilty to another 20 counts on an indictment. Furthermore, he had been committed for sentence in August 2014 on 49 further counts of “sexual assault”. Thus, Judge Zahra sentenced him in relation to 79 offences, 62 were dealt with as substantive offences and 17 were taken into account ultimately on a Form 1. Those sexual assaults included “indecent assaults” and “sexual intercourse without consent”.

31. These other offences related to 12 complainants and were offences committed over a nine-year period between December 1979 and December 1988. The earliest and latter offences were offences committed against the prisoner’s nieces. Attached to his Honour’s judgment was a schedule (Schedule A) setting out the various offences for sentence, or to be taken into account on a Form 1.

32. His Honour’s judgment is a very detailed judgment, as one would expect, having regard to the complexity of the sentencing exercise facing his Honour. Of the various male victims, all were altar boys aged between 10 and 12 at the time of particular crimes. All those victims met the prisoner through him performing pastoral duties in Moree and were students at the local primary school like the current victims. All the offences have distressing similarity to the current offending. The prisoner also sexually assaulted three of his nieces, at various times between 1979 and 1988. Those three young women were sisters and their ages varied between 10 and 18 years at the time of the relevant abuse.

33. So far as the range of offences are concerned, the offences against his nieces varied from indecent assault to sexual intercourse without consent. Three counts of those sexual intercourse relating to one victim, 11 counts relating to another and four counts relating to a third. With regard to the altar boys, not all victims were the subject of the more serious offences of “sexual intercourse without consent”. One other victim was the subject of three offences of sexual intercourse without consent. The other victims were either indecently assaulted and/or the subject of sexual intercourse without consent. One victim was the subject of 19 offences committed between November 1981 and July 1984. Each of the victims with whom I am concerned were victimised over a relatively limited period of time. MR over the longest period of the three victims, although the majority of offences against him were committed at the local drive-in on the one occasion. Those offences in these terms so far as physical acts are concerned appear to be the least serious of his offending conduct over the years.

30. The offences against DJ were committed within a 24 hour period, but involved horrific and repeated child “rape”. The most serious crimes relating to DW, of “sexual intercourse without consent”, were committed in a relatively short period of time, but likewise represent horrific crimes having regard to the character of the assaults and their locations. They are all very grave crimes of their type.

31. The facts relating to the offences committed against other altar boys bear the same pattern of offending as revealed in the trial over which I presided.

32. Judge Zahra fixed an “aggregate sentence” pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 (the “Act”) for the crimes with which he was concerned of 29 years imprisonment to commence on 20 June 2015, with an “aggregate non-parole” period of 18 years imprisonment to commence on the same date, to expire on 19 June 2033. His judgment has annexed to it a schedule of indicative sentences in relation to the individual offences that his Honour was obliged to fix.

33. I propose to fix an aggregate sentence in relation to the offences with which I am concerned, with indicative sentences relating to each of the individual offences.

OTHER EVIDENCE RELEVANT TO THESE SENTENCING PROCEDURES

38. Apart from subjective matters considered by his Honour Judge Zahra SC, which are largely relevant to and common with this sentencing exercise because it would appear since sentence in 2016 little has changed in the prisoner’s circumstances, beyond continuing to serve the sentences previously imposed, I note the prisoner is now aged 65 years, being born on 4 July 1953. No psychiatric or psychological reports were tendered in these proceedings. None were tendered to Judge Zahra. The only “additional” evidence to that provided to Judge Zahra SC is a letter from Mr Farrell dated 16 October 2017 addressed to the Chief Executive Officer of the “Royal Commission into Institutional Responses to Child Sexual Abuse” in which the prisoner makes a number of comments in relation to material presented to the Royal Commission in respect of what is said to be a “Case Study: Number 44”. This is a reference relating to him that has not been yet published because of these proceedings.

39. The prisoner in this letter provides material in relation to his contact with senior clerics, including bishops, and provides information as to the activities of a number of these people insofar as they dealt with him professionally. He comments upon their responsibility for his continuing presence in the priesthood while he was offending and subsequently. The prisoner in that letter acknowledges that he was unable to give evidence at the public hearings of the Royal Commission and comments upon evidence given or submissions made by interested parties. It is not my role to amplify this material, nor give it public credence. What the Royal Commission make of it is entirely a matter for the Royal Commission. I could not possibly comment upon the significance of this material, not having been briefed with or provided with any material relating to any public hearings, or private hearings, relating to the prisoner’s “Case Study”. Obviously, given the “admitted” misconduct of the prisoner, he was a person of considerable interest to the Royal Commission. I note the “assistance” he provides or offers in the letter. Similar offers of prior assistance were taken into account by Judge Zahra. I agree with his Honour’s analysis that the letter shows a willingness to assist the Commission, from the perspective of the prisoner, however what value the material is I cannot judge. In my view the material is relevant to some extent as exhibiting some contrition in relation to matters he has admitted, and is worthy of a “small discount” as expressed by Judge Zahra. But not calculated as a discreet percentage. It must be said though that the letter that I read reflects a concern the prisoner has to blame others for his misconduct going undetected in circumstances where if he had shown self-control and a modicum of decency at relevant times the offences would not have been committed at all.

40. At the time of the offending the prisoner had no criminal convictions. But at the time of the offending with which I am concerned the prisoner had already committed other crimes then undetected.

41. The accused was able to use his “veneer” of good character and position in society to gain access to the victims to abuse them. His lack of convictions, at the time of this offending with which I am concerned, did not reflect the presence of good character at relevant times. He was an uncharged sexual predator from 1981, at least, onwards. His good character was, in reality, an illusion.

MATTERS RAISED IN THE COURSE OF SUBMISSIONS

42. In respect of the submissions of the Crown and the accused, I have taken into account the submissions that are made in respect of the character of the offending, and also what has been put in respect of the issue of the likelihood of the prisoner to reoffend, the relevance of his subjective circumstances, the issues of accumulation and totality as I have noted elsewhere.

43. A matter that requires discreet comment, however, is the operation of s 25AA of “the Act”. This provision, which applies to this matter (there being no transitional provisions and this sentencing proceeding commenced before the new provision came into effect but now finalised afterwards) requires the Court now to sentence the offender in accordance with current sentencing procedures as opposed to a consideration of sentencing procedures at the time of the offending.

44. In doing this, I am required to have regard to the relevant maximum penalties at the time, though the Crown draws to my attention that identical offending under the current provisions would attract greater maximum penalties and/or particular standard non-parole periods (for example see s 61M(2) Crimes Act 1900).

45. As was briefly discussed with the learned Crown and counsel for the prisoner, it is all well and good to speak about sentencing in accordance with current sentencing practices, but the facts of the matter are that particular offending is still to be considered in the context of the relevant maximum penalty. The legislature has not sought, nor should it, to retrospectively increase maximum penalties for offending in the period with which I am concerned.

46. The Crown pointed out that his Honour Judge Zahra in reviewing what he understood to be the sentencing patterns of the time (which extended over a greater period of time than that with which I am concerned) noted the decision in Fisher (1989) 48 A Crim R 442, at [445]. There it was stated:

“The Court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them but also in an endeavour to deter others who might have similar inclinations … heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults.”

47. Those observations made only some few years after the offending with which I am concerned are obviously relevant in this sentencing exercise. His Honour Judge Zahra SC, in dealing with offending contemporaneous to the offending with which I am concerned, noted the difficulties in discerning past sentencing patterns with any “precision”. Both parties agreed in their submissions to me that ultimately the current sentencing practices, in the context of then maximum penalties, could be met by regard to the particular indicative sentences that his Honour Judge Zahra determined for offending of like character at about the same time. I propose in general terms to follow this course, albeit with an eye to consideration of the relevant maximum penalty for a particular offence, and also with an eye to considering the timing of this offending with which I am concerned in the context of other offending and its timing for which the prisoner has been punished by his Honour Judge Zahra SC.

48. With regard to “delay in prosecuting the offender”, there was no substantial delay in prosecuting DJ’s complaints in a material sense. However, the prisoner was discharged and ultimately the matter was revived when the tsunami of similar complaints became known to the prosecuting authorities. His Honour Judge Zahra concluded that the sentences he imposed should not be mitigated by any delay in prosecution. I agree. In fact delay in the proper prosecution of the prisoner only gave the prisoner more opportunity to commit other offences. Time spent in custody need not be taken into account because that has already been done by Judge Zahra in respect of the other sentences imposed. With regard to delay, Judge Zahra observed that there was no material before him that delay had had an effect upon the prisoner’s “life”, and the same applies here.

49. It was pointed out in submissions that Judge Zahra indicated there was “limited evidence of remorse and insight”, I take it in respect of the matters to which the prisoner pleaded guilty. Likewise here, there is almost no evidence of remorse except that inherent in the pleas of guilty entered in relation to one count concerning DJ and the five counts in relation to MR. Contrition or remorse is not relevantly a “mitigating” factor of great substance for these four counts and not at all in the wider context.

50. I should point out in respect of the issue of “remorse”, it was noted by the prisoner’s counsel that the pleas of guilty “indicate remorse for that offending”. It may be so, but they were pleas of guilty entered at a very late stage. Well after the prisoner had been convicted and sentenced for 79 other offences. In the circumstance of Count 1 relating to DJ, 31 years after the prisoner had been originally charged and after the prisoner at Committal had challenged the account of DJ through his counsel.

51. The prisoner did acknowledge, in his evidence, in respect of the matters that were “agreed tendency facts”, that he had regret for his offending and the abuse of trust he held as a priest. This reflected the reality of the situation. If it indicated “insight” it was long overdue. Such insight as has been developed by the prisoner into the impact of his offending has come too late for the victims and certainly cannot be accepted as a matter of substance in the sentencing of the prisoner in respect of those offences with which I am concerned to which he pleaded “not guilty”. He was fully entitled to plead “not guilty”, put the Crown to proof and on oath deny his guilt. But the jury’s verdicts reflect a rejection of his evidence and an acceptance of the truth of the evidence of the relevant complainants beyond reasonable doubt. It is noted though that the agreement as to the “facts” as to the tendency evidence from previous proceedings made the trial before me shorter and less trying for jurors and relevant victims.

52. It is pointed out by his counsel in relation to the issue of his likelihood of reoffending that, given his current sentence expires when he will be approximately 81 years of age, it is “unlikely that he will reoffend”. Assuming that he is alive at the conclusion of the ultimate sentence imposed upon him. This is probably true. But this arises only through the effluxion of time and not through any positive steps taken, or that could now be taken by the prisoner, that may lead to reformation. Likewise the issue of the assessment of his prospects of rehabilitation is “academic” primarily because of the effluxion of time since his offending and his current age and continued detentions, not because of any positive steps that he has or will take in the future.

53. It is conceded by his counsel that there should be some additional period of imprisonment. Principles of “totality” however should result in a sentence which is more modest in its practical effect (not in its objective length) than if he had been sentenced to these offences without already being subject to a current term of imprisonment. With those general propositions I agree, in the same way as the matter was approached by his Honour Judge Zahra.

54. In this context one of the practical difficulties in this case is that his Honour fixed a non-parole period that reflected a finding of “special circumstances” (pursuant to s 44 of the Act) in the aggregate sentence, in part, because of the effect of the effective “accumulation” or “partial accumulation” of sentences. That sentence is so substantial that any extension of the non-parole period for this prisoner by myself does not permit of a practical balance of sentence that would create a proportionally similar balance of sentence to that imposed by his Honour. I could fix a “disproportionate” sentence in terms of the balance of sentence to preserve some of the “relativity” between the current non-parole period and the current balance of sentence as fixed by his Honour. But that is impractical and impermissible because it seems to me, in the context of submissions that were made to me, that the totality of the criminality with which I am concerned has to be considered in the context and “shadow” of the sentences imposed by Judge Zahra SC. Thus, for example, I could not fix a total aggregate sentence and adjust the commencement date of the aggregate sentence to pre-date the expiry of the current non-parole period to arrive at some similar proportion between the effective non-parole period and the effective balance of sentence that stands after my sentencing. The totality of the criminality the subject of sentences fixed by his Honour is significantly greater than here, but the totality of the criminality of the prisoner is greater with all offences taken into account, not just the offences dealt with by Judge Zahra SC.

55. His Honour Judge Zahra SC at considerable length analysed the character of the offending against each of the other complainants. Some of the victims he was concerned with were subject to more prolonged and more frequent sexual abuse than the current victims with which I am concerned. For example, one victim, “MB”, was subject to “unremitting sexual abuse over about three years”. Relating to this victim 11 of the counts involved sexual intercourse without consent on 10 separate occasions. His Honour made the point that the “enormity of the sexual abuse (of that victim) is evident in the overall pattern of predatory sexual assault over a substantial period of time, some three years”. Those crimes were attended by the prisoner developing “the confidence of the complainant’s family” so that he had “frequent control over the complainant well away from the protection of the complainant’s family”. These crimes do not all have that particular characteristic. The prisoner had befriended to some extent DJ’s family and dined with them, but not for the extensive period of time as identified in relation to MB.

56. Generally speaking, the qualitative observations of Judge Zahra in relation to the first group of matters in respect of like offending to that with which I am concerned, can reasonably be adopted by myself as reflecting my view of the seriousness of the offending, although there are variations between the offences and between the victims as I have pointed out by reference to one other victim.

57. Judge Zahra had more evidence in relation to the subjective circumstances of the prisoner. He had an affidavit from the prisoner’s brother which is summarised in the judgment of Judge Zahra. I have had regard to the findings on that evidence. His Honour and I are not given the benefit of any psychiatric or psychological reports that assists the Court in understanding any “motivation” or underlying “psychological conditions” that may have contributed to the offending. It is to be pointed out the prisoner was aged between 26 and 35 at the time of the offending with which Judge Zahra was concerned. The facts available to me are that he was aged between 26 and approximately 28 or 29 years of age. There was some evidence from the prisoner’s brother in relation to the issue of remorse. It does not persuade me to make any other finding other than I have earlier made.

58. Like his Honour Judge Zahra I have taken into account the period of time the prisoner was on conditional bail and some limitations upon the prisoner’s freedom during that period of time. I have taken into account the issue of “hardship in custody”. As with Judge Zahra there is no material available to me that any hardship in custody will be significant, notwithstanding the fact that he will be in protective custody and he is subject to classification related to “high profile sex offences”. He has diabetes. There is no evidence of any difficulties with treatment. He will have natural hardship arising out of his age and his background. The prisoner is not entitled to any consideration for “extra-curial punishment”. The matter was not put to me as such, but I note the finding of his Honour Judge Zahra that his “loss of ministry” is not a matter which entitles him to any reduction in sentence.

59. There is only one victim impact statement, that is from the victim DW. DJ has been deceased for many years and there is no explanation of the absence of a victim impact statement in relation to MR. The victim impact statement is of importance in considering particularly the purpose of sentencing pursuant to s 3A of the Act that the Court is to “recognise the harm done to the victim of the crime and to the community”. The offending with which I am concerned, as well as the other offending the subject of sentence by Judge Zahra, represents an enormous impact upon the community in which the offending occurred and a self evident impact on the various victims. The prisoner’s conduct must have had a demoralising effect upon the members of the Catholic community of Moree up until the present time. Even to “non-Catholic” observers the character and extent of his offending whilst in Moree beggars belief.

60. His Honour Judge Zahra eloquently set out the need for recognition of the long term and short term effects of child sexual abuse. His Honour’s remarks were very prescient because, as I understand it, they reflect in general terms the findings of the recently completed Royal Commission into Institutional Responses to Child Sexual Abuse that was underway, but not finished with its work, at the time of his Honour’s sentencing. I likewise take into account material on the effect upon individuals in the context of the operation of s 3A(g) of the Act. But not as an “aggravating factor” under s 21A(2) in accordance with the finding of his Honour. I make one further observation beyond those general observations made by his Honour in respect of the evidence available to him with great respect to his Honour’s wisdom. I was struck by the evidence of DW and the way in which the evidence was given, particularly the impact upon him of giving evidence and reliving the events the subject of charges in the indictment. It was clear from his evidence the considerable harm to him throughout his life by reason of the prisoner’s conduct. This was also apparent in the evidence of DW’s brother (another victim of the prisoner) reflecting upon the conduct against him relied upon by the Crown as evidence of relevant “tendency” at the trial. These two men were quite obviously from their evidence profoundly affected by the misconduct of the prisoner. A matter which was clearly of no concern to the prisoner at the time of the offending nor for many years thereafter.

OTHER ISSUES THAT ARISE

61. In the context of the “purposes of sentencing” pursuant to s 3A of the Act, it follows that, in relation to the sentencing of the prisoner, there is a need for the prisoner to be adequately punished and to deter others from committing similar crimes. Preventing further crime by this offender is relevant but ultimately “academic” in light of his prospective age on release. As is the need now to protect the community from the offender. That would have been a very strong factor to take into account had he come forward for sentence in the 1980s and 1990s. It is correct that there should be some weight given to promoting his rehabilitation. But again that is largely academic. He certainly has to be made accountable for his crimes and denounced for his heinous conduct, as well as recognising the harm done to his victims and the wider community including, I hasten to say, his own religious community and its reputation.

61. With regard to s 21A(2) of the Act all the offences involve breaches of trust in relation to each victim (s 21A(2)(k)) as there was trust reposed in the prisoner by the victims, their families and the Church to some extent. One of the offences committed against DW was committed in his home (21A(2)(eb)). All the offences were committed in places or environments that ought have been “safe havens” as I earlier pointed out. A priest’s car, a presbytery occupied by other people in holy orders and a church. Another aggravating factor is that the offence committed in DW’s home was committed in the presence of another child under the age of 18 years (s 21A(2)(ea)). Other “aggravating factors” in the offending are spoken for in the facts themselves without recourse to additional matters required to be identified under s 21A(2).

62. So far as mitigating factors are concerned, they are few. It is correct as I have earlier noted, the prisoner did not have any record of previous convictions at the time of each offending, but at relevant times he was an unconvicted sexual predator. He had already committed a number of crimes against his nieces and some other altar boys. He did not have good character as a result. His likelihood of reoffending is dictated only by his age, not by any particular will on his part to avoid offending in the future, as with his prospects of rehabilitation. I cannot find remorse for the matters for which he has pleaded guilty as a substantial “mitigating factor”. Although I note it has been expressed. His pleas of guilty in respect of those matters are “mitigating factors” for which he receives a discreet discount. He has provided assistance, or offered assistance, to the Royal Commission, a matter of little mitigation.

63. Totality of criminality in this matter requires consideration of both the totality of the criminality of the offences with which I am concerned but also their place in consideration of the totality of the criminality of the prisoner including the other offences. In this regard I note the observations of the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610, at [45] and decisions of the Court of Criminal Appeal such as Hammoud (2000) 118 A Crim R 66, at [7], per Simpson J and the various principles summarised by Hall J in R v XX (2009) 195 A Crim R 38, at [52].

64. In fixing the effective total sentence I propose fixing an aggregate sentence pursuant to s 53A of the Act. None of the offences had a “standard non-parole” period at the time so there is no need to fix indicative non-parole periods for each offence. In regard to this aspect of the sentencing exercise I note the propositions summarised by Hulme J in JM [2014] NSWCCA 297, at [39].

65. Although I, like Judge Zahra SC, determine that there are “special circumstances” pursuant to s 44 of the Act, in part because of the effects of “partial accumulation” and also for the need to provide an extended period of supervision to assist him to adjust to community living particularly having regard to his anticipated age at the time of release.

66. The Crown and the defence submitted that the sentences imposed by his Honour, notwithstanding the terms of 25AA of the Act, now operative, provided guidance for this sentencing exercise. Having regard to the submissions there is no need to discuss this provision that came into force after trial but before sentencing submissions. Obviously I have to form my own view of the appropriate sentences to be imposed. I will take some guidance from his Honour, particularly given his Honour’s remarks provide the proper context for these matters and the difficulties he noted in identifying any relevant sentencing patterns.

67. I have concluded that the appropriate total sentence to be imposed for these offences is 9 years 6 months imprisonment. I propose to commence this aggregate sentence two years before the expiration of the current non-parole period. The aggregate non-parole period is 5 years 6 months dating from the same date. That extends the prisoner’s non-parole period by 3 years 6 months. This leaves a practical balance of sentence of 8 years 6 months imprisonment. Indicative sentences where discounts have been given have been rounded up or down to the nearest month. This means, as I pointed out earlier, that the relationship of the non-parole period to the balance of sentence has been disturbed. But that, by definition, is unavoidable. The balance of sentence ultimately though is sufficient for parole supervision purposes. On the other hand, the further criminality with which I am concerned demands an extension of the minimum time to be spent in custody.

68. If, for example, I dated the non-parole period from the expiry of the current non-parole period the finding of “special circumstances” would not have practical effect, leaving a balance of sentence of less than 6 years for a sentence of 29 years. Principles of totality and the requirement of the “Act” for ensuring continuous periods of custody do not permit a commencement date prospective to the existing non-parole period. The ultimate sentences I impose are proportional to those imposed by his Honour in 2016.

ORDERS

70. In respect of all offences the prisoner is convicted.

71. Pursuant to s 53A Crimes (Sentencing Procedures) Act 1999, I fix an aggregate sentence of 9 years 6 months imprisonment to commence on 20 June 2031 and to expire on 19 December 2040 with an aggregate non-parole period of 5 years 6 months imprisonment to commence on the same date and expire on 19 December 2036.

Indicative sentences

Re DJ

Count 1   1 year 9 months imprisonment

Count 2   6 years imprisonment

Count 3   7 years imprisonment

Count 4   1 year 9 months imprisonment

Count 5   5 years imprisonment

Count 6   7 years imprisonment

Count 7   1 year 9 months imprisonment

Count 8   2 years imprisonment

Re DW   

Count 9   2 years imprisonment

Count 10   7 years imprisonment

Count 11   7 years 6 months imprisonment

Re MR (indictment presented 11/4/2014)   

Count 13   1 year 1 month imprisonment

Count 14   1 year 1 month imprisonment

Count 15   1 year 1 month imprisonment

Count 16   1 year 2 months imprisonment

Count 17   1 year 10 months imprisonment

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APPENDIX A (52.2 KB, doc)

Decision last updated: 02 November 2018