R v Jewell

[2021] NSWDC 409

District Court

New South Wales

Medium Neutral Citation:

R v Jewell [2021] NSWDC 409

Hearing dates:

1/4/21, 14/5/21

Date of orders:

14/5/21

Decision date:

14 May 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate sentence of 7 years with a NPP of 4 years (14/5/21-13/5/25). I find special circumstances.

The indicative sentences are (each count being indecent assault):

Re indictment dated 13/2/19 (25 percent discount for plea for each)

Count 1 – 6 months

Count 2 – 12 months

Count 3 – 9 months

Count 4 – 9 months

Count 5 – 8 months

Count 6 – 10 months

Count 7 – 9 months

Count 8 – 9 months

Count 9 – 18 months

Count 10 – 9 months

Re indictment dated 11/2/21

Count 1 – 10 months (25 percent discount for plea)

Count 2 – 10 months (25 percent discount for plea)

Count 3 – 10 months (25 percent discount for plea)

Count 4 – 12 months (25 percent discount for plea)

Count 5 – 8 months (10 percent discount for plea)

Count 6 – 12 months (10 percent discount for plea)

Count 7 – 22 months (10 percent discount for plea)

Count 8 – 12 months (10 percent discount for plea)

Count 9 – 14 months (10 percent discount for plea).

I recommend that the offender be given urgent access to Justice Health services.

Catchwords:

Crime – Sentence – Indecent assault – Historical offences

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R [2013] 302 ALR 192

Chamseddine v R [2017] NSWCCA 176

Culbert v R [2021] NSWCCA 38

O’Sullivan v R [2019] NSWCCA 261

R v MJR (2002) 54 A Crim R 368

R v Nelson [2016] NSWCCA 130

R v PGM (2008) 187 A Crim R 152

R v Tuala [2015] NSWCCA 8

Category:

Sentence

Parties:

NSW DPP – Crown
Kevin Joseph Jewell - Offender

Representation:

Mr M Paish for Crown
Ms S Goodwin for Offender

File Number(s):

2017/324154

Publication restriction:

Non-publication order in relation to the identities of the victims.
Pseudonym order in relation to the names of the victims.

sentence

1. Before I commence I should just note that the names of any victims to whom I will refer must not be published and I also note that before these remarks are published on the Internet through the Court’s portal there will be pseudonyms put in place with respect to the names of the victims.

2. Mr Jewell is to be sentenced for 19 offences of indecent assault, those being offences under s 81, now repealed, of the Crimes Act 1900 being offences committed between about February 1967 and December 1969. The maximum penalty for each of those offences is five years’ imprisonment which of course is a guidepost in the sentencing exercise to which I have had regard.

3. The 19 counts are spread over two indictments. The first indictment contains ten counts and the second indictment nine counts. For the sake of simplicity I will refer to the offences on the second indictment as counts 11 through to 19.

4. The offender pleaded guilty at the earliest opportunity to counts 1 to 14 and I intend to allow a 25% discount on account of the utilitarian value of those pleas of guilty. On counts 15 to 19 however the pleas of guilty were made a few months before a proposed trial, about two years approximately after the offender was committed for trial after indicating pleas of not guilty. In those circumstances I intend to allow a discount of 10% on account of the utilitarian value of those pleas of guilty.

5. I determined those discounts in accordance with general authority and the exercise of my discretion given that the provisions of s 25D of the Crimes (Sentencing Procedure) Act 1999 do not apply. I have also taken into account the submissions made about the fitness issue that was raised by the offender’s lawyers at an early stage in the proceedings.

FACTS

6. Turning to the facts which are agreed. They are in summary, as follows:

7. The offender at the time of the offences was a member of the Marist Brothers Catholic religious order. He worked as a teacher from 1959 until 1970 in various Catholic schools and in that role was known as Brother Dacian. In 1970 the offender took a year of leave after indicating that due to “a personality trait I can no longer meet the obligations of my vow of chastity”.

8. In 1967 he was a teacher at Marist Brothers, Eastwood, a school for boys. At that school in 1967 the offender was a teacher for Class 5 Red, a class of about 50 boys, which included each of the victims referred to in the first indictment and some of those referred to in the second indictment.

9. Turning to count 1 which was an indecent assault of AB. The facts are that on an occasion in 1967, AB, who was aged at that time between nine and ten, was being supervised, along with other boys from the swimming squad, in a building known as “the ferry”. It was a building within the grounds of the school, to which I will be making further reference later in these remarks. At a time when the boys were trying on swimming costumes the offender “patted down” the victim around his genitals and buttocks under the guise of checking the sizing of the swimming costume.

10. Count 2 is a further indecent assault of AB and relates to an occasion when the victim was in the classroom after school with the offender. On this occasion the offender put his hands inside the victim’s pants and fondled his penis. Whilst this was happening another teacher came to the classroom door and spoke to the offender. However the victim had his back to the other teacher and the offender did not remove his hand from the victim’s pants while they spoke. The agreed facts indicate that the victim also experienced abuse during class time when the offender would call him to the front of the class and fondle his penis and bottom. As noted in the agreed facts the offender would regularly abuse the victim but the offences outlined in the facts are those that are able to be particularised by the victim.

11. The victim attempted to report the abuse to the Principal, Brother Anthony, in 1969, however Brother Anthony became angry at the victim and told him not to tell anyone about it ever again. The victim recalls that the offender, however, was not seen at the school after this report. The victim also disclosed some of the offending to his wife early in their relationship when they were in their early twenties and also disclosed further information to his wife in the late 1990s. However it was not until 2012 that the victim first reported the abuse to police before reporting it also in 2014 to the Royal Commission into Institutional Responses to Child Sexual Abuse. In March 2017 the victim completed a police statement.

12. Count 3 involves an indecent assault of CD. CD was another pupil in the offender’s class in 1967. On an occasion in 1967 CD was standing next to the offender who was seated at his desk in the building known as “the ferry” when the offender put a hand on the victim’s bottom over his school shorts while the other hand was on the front of the victim’s school shorts on top of his penis. The offender fondled the victim’s penis, causing it to become erect. The offender said something to the victim like “has your penis been getting hard lately“ which caused the victim to be confused and scared and to which he replied, “I don’t know” whilst standing there not knowing what to do. The offender also asked the victim something like “would you tell your parents about your penis getting hard”, which understandably confused the victim who said “yes I would”. The victim cannot recall the period of time over which this offence took place and never told anyone that the offender had touched him inappropriately and was understandably too embarrassed to tell his parents.

13. Count 4 is an indecent assault of EF. In 1967 EF was also a pupil being taught by the offender. At the time the offender was the head swimming coach and EF was a very strong swimmer. During 1967 the victim was trying on swimming costumes with other boys in the presence of the offender. While the victim was wearing a pair of Speedos, the offender touched him on the buttocks and genital area underneath the Speedos directly on his skin and on his genitals for some time saying “just need to make sure these fit” and “are they comfortable”. Given his young age, the victim did not understand what had happened but was troubled by and confused about it. He also recalls seeing similar things happen to other boys. EF became good friends with AB about five to ten years ago when attending the funeral of AB’s father. He spoke then with AB who disclosed to him some of the offending that had taken place involving the offender. It was at this time that EF disclosed to AB that things had also happened to him at the hands of the offender.

14. Count 5 involves an indecent assault of GH. He was another student in Year 5 Red in 1967 who was taught by the offender. At the time the offender was the victim’s athletics coach and the victim was at times teased by the students after he was given a pair of running spikes by the offender. The victim, GH, was on many occasions called to the front of the classroom by the offender while the rest of the class was working on some task. The offender would be seated at his desk which was on a raised platform at the front of the classroom. On one particular occasion the offender put his hand on top of the victim’s genitals over his shorts. The victim was confused and thought it was strange. This happened on many occasions in 1967 but the victim never disclosed the abuse to his parents. He first told AB about what had happened in a phone conversation in 2017.

15. Count 6 is an indecent assault of IJ. He was another student in the offender’s class in 1967. He recalls being taught by the offender in “the ferry”. The offender would at times invite the victim to visit him at “the ferry” outside school hours. The offence in count 6 involved the offender, who was sitting at the front of the room in near darkness, starting up a friendly conversation with the victim during which he placed a hand or hands down the front of the victim’s trousers and fondled his genitals while the victim was standing in front of him. This lasted for several minutes while an unrelated conversation took place. The agreed facts indicate that several of these “sessions” took place during 1967.

16. Count 7 is a further indecent assault of IJ. On another occasion the victim was summoned by the offender to come to his desk during class and told to stand so that other students could not see what was happening. The offender then fondled the victim’s genitals. While the victim cannot recall the number of these sessions in class, which were shorter than those occurring after school, the agreed facts indicate that they may have totalled about half a dozen times. The victim says that he did not experience any particular feeling of revulsion at the time and that he does not believe the offending had any adverse effect upon him. I note however that this assertion in the agreed facts must be considered in the light of the victim impact statement provided by IJ in April 2019.

17. Count 8 is an indecent assault of KL. He was also taught by the offender in 1967 and recalls being taught in an older detached prefabricated building, which description is consistent with the building known as “the ferry”. On an afternoon in 1967 when the victim had been “nodding off” in class the offender summoned him to his desk and pulled him close. While the victim was standing in front of the offender the offender placed one of his hands on the small of the victim’s back and his other hand on top of the victim’s stomach before moving a hand to the front of the victim’s school shorts, patting and searching for his penis and testicles through his school shorts. While this assault was occurring the offender was talking to the victim about homework saying nothing about what he was actually doing. During this offence the offender touched the victim’s buttocks and penis for about one minute. The victim first disclosed this incident at a school reunion only a few years ago when AB was talking about the abuse that he himself had suffered.

18. Count 9 is an indecent assault of MN. He also recalls being taught in “the ferry” by the offender in 1967. On one particular occasion that year the victim was alone with the offender as the rest of the class had gone to recess and the victim had been asked to stay behind. The agreed facts indicate that the occasion was a very hot day and the victim had been sticky and uncomfortable and during class had put his hands inside his own pants to readjust his genitals. The offender said to him “why were you doing that” and when the victim replied “I am just hot and sticky” the offender said “well let’s have a look then” and unzipped the victim’s fly, pulled down his underwear and exposed his penis. The offender then used his hand to fondle the victim’s penis and testicles. While doing this he spoke to the victim generally about touching himself in class. The victim is not sure how long the abuse lasted but was very confused and found it disturbing. He first disclosed the offence in detail in a statement to police in 2018.

19. Count 10 is an indecent assault of OP. OP was another student at Marist Brothers, Eastwood, who was in year 6 in 1968 and was a member of the school representative swimming team. On an occasion in that year he was told by his class teacher to go and see the offender during a break. When he arrived, the offender was the only person in the room. The offender told the victim to try on some swimming costumes and the victim then removed his shorts and underpants and tried on the swimming costumes. The offender then put his hand in the front of the swimming costume, fondling the victim’s genitals, for at least five seconds. The victim remembers the offender smiling at him. After this the victim got dressed and left. He disclosed the assault in later years to friends and family as well as to a marriage counsellor.

20. That brings me to the nine counts in the second indictment which, as I have indicated for simplicity sake, I will refer to as counts 11 through to 19. The nine counts in this indictment relate to offences committed by the offender between 1966 and 1969 when he was a teacher at two schools, those being Marcellin College Randwick and Marist Brothers Eastwood.

21. In 1966 the offender was the teacher of third class at Marcellin College, Randwick. The class had about 40 students who were seated in rows of desks. It was the offender’s practise to call students to his desk which was at the front of the room mostly while other students continued to work.

22. Count 11 is an indecent assault of QR. In about June 1966 the offender called QR to the front of the class. The offender, who was seated, put his arm around the young victim and drew him close, almost pinning him against the offender’s left leg. The offender then said something and rested his palm against QR’s stomach before sliding his hand into the boy’s pants where he fondled his penis and testicles. The offender used his fingers and thumb to hold the boy’s penis and began moving it up and down in a jerking motion for a period of not more than a minute. While doing this he was continuing to speak to the victim who was in shock at what was happening. After this he removed his hand and told the victim to return to his seat.

23. Count 12 is another indecent assault of QR. This offence occurred about a week or two later when the victim was in class and the offender again asked him to come to the front. Again, on this occasion, the offender pulled the victim close praising him for doing a good job with his school work. He then touched the victim in the same manner as before fondling his penis and testicles. The agreed facts indicate that the offender sexually touched QR a total of three or four times over a few weeks in the middle of 1966.

24. Count 13 is an indecent assault of ST. He was another student in third class at Marcellin College, Randwick in 1966. He was eight years old and in the same class as QR. The agreed facts indicate that ST was one of the offender’s favourites and that the victim’s father knew the offender and thought him to be a good teacher. About midway through 1966 the victim was getting changed, in the classroom, from his PE uniform back into his school uniform, and standing at his desk putting his shirt back on. The school requirement was for any school shirt to be tucked into a student’s shorts. On this occasion the offender called the victim to his desk, saying “come over and I will help you tuck your shirt in”. The offender also said, “looks like you are having trouble there” and then used both his hands to tuck the boy’s shirt in, starting from the rear but working his hands around to the front where he tucked the shirt into the boy’s underpants. The offender then moved his hand inside the boy’s underpants, sliding his fingers against his penis and testicles and touching his genitals for a moment before removing his hand and leaving the shirt tucked into the boy’s underpants. This offence lasted a matter of seconds after which the offender said, “there you go, well done”. The victim did not fully understand what had happened but thought it was a bit weird and wrong. The agreed facts indicate that this type of touching occurred on several occasions.

25. Count 14 involves another indecent assault of ST. This count relates to another occasion in 1966 when the offender was teaching a PE class in the gymnasium in which he would instruct students to perform stretches in the form of lunges. The offender asked ST to come to the front of the class to act as an example and told him to lie on the vaulting horse on his back. When the victim did this the offender used one hand to raise one of the victim ‘s legs in the air while resting his other hand on the victim’s other leg. He then slowly moved his hand into the boy’s shorts so that his hand touched the victim’s penis and testicles beneath his underwear. The offender fondled the victim’s genitals for about 30 seconds while continuing to instruct the class about stretching. The agreed facts indicate, as I have already noted, that the offender touched the victim on several occasions in this manner over the course of the year.

26. Counts 15, 16, 17 and 18 relate to AB to whom I have already referred in earlier offences. These four counts refer to offences committed in 1967 when the offender was the teacher of AB at Marist Brothers, Eastwood. In addition to being the victim’s class teacher the victim was also given piano lessons by the offender which occurred in “the ferry” building, usually after school.

27. Count 15 involves an indecent assault on AB which occurred during the first piano lesson. On that occasion the offender sat very close to the victim so that they were touching. After a short time the offender started rubbing the victim’s leg and then moved his hand to the genital area where he rubbed the victim’s groin and genital area while continuing to talk about the piano lesson. The victim was understandably confused and frightened by these acts.

28. Count 16 is a further indecent assault of AB. In the second piano lesson the offender was again sitting close to the victim and placed his hand on the victim’s leg and rubbed it, he then moved his hand inside the victim’s shorts into his underwear where he fondled the victim’s penis while the victim played the piano as the offender spoke.

29. Count 17 is a further indecent assault of AB. The agreed facts indicate that subsequent piano lessons did not involve any piano playing. On one occasion the offender took the victim to an alcove behind a curtain inside “the ferry” building where he removed all of the victim’s clothes. The offender then touched the victim on the legs, groin and bottom and kissed those areas.

30. Count 18 is a further indecent assault of AB. On another occasion during the summer months the victim was standing in front of the offender trying on swimming costumes in “the ferry” where they were all alone. On this occasion the offender put his hand inside the costumes and fondled the victim’s penis while his other hand was touching the victim’s buttocks. The offender then told the victim to try on another pair of costumes, even though the victim said the first pair fitted well. The next pair were too big, and the offender, at this time, felt the victim by patting him on the outside and inside of the costume with his hands after which he told the victim to try on the first pair again.

6. Count 19 is an indecent assault of UV. This offence occurred in 1969 when the offender was the teacher of fifth class of which UV was one of the pupils. In late term one or early term two the offender called the victim to his desk during class in relation to his school work. While the victim stood in front of the offender who was seated at his desk, the offender put his hand down the front of the victim ‘s shorts and another hand down the back of the shorts and fondled the victim’s penis while his other hand rested on the victim ‘s buttocks. The victim was scared and froze and the offender continued touching him for a few more seconds. In 2006 or 2007 the victim began to see a counsellor and in about 2009 or 2010 he disclosed the abuse to his sister.

7. According to the agreed facts the offender’s criminal acts began to be spoken about from about 1968. During that year, the primary school Principal at Marist Brothers, Eastwood, was teaching a human development class and telling the boys in year six that “no one is to touch your private parts except your parents or if you are sick”, or words to that effect. The Principal recalls some of the students saying “but Brother Dacian does that” and “kids are called out to his desk and when you’re out there that’s when it happens”. The agreed facts indicate that the Principal was aware that the offender later left the school in the second part of the year but returned in 1969 when he again gave this same talk to a year six class and was again told that Brother Dacian was touching boys. It was after this that the offender was apparently removed from the school and did not return.

8. The agreed facts indicate that many years later, possibly in the 1990s, the offender visited a Marist Brothers’ residence in Drummoyne where he had a conversation with Brother Canavan who had been the teacher in charge of the primary department at Marist Brothers, Eastwood, in 1967. During this meeting with Brother Canavan the offender disclosed that he had sexually abused a student whilst at Marist Brothers, Eastwood. However it was not until 26 October 2017 that the offender was arrested and charged with various offences at which time he declined to answer questions.

9. Those are the factual matters on which the offender is to be sentenced.

OBJECTIVE SERIOUSNESS

35. As is well known, sexual offending against children is regarded with extreme disgust in our community. In recent decades this has become particularly so because of the acceptance in the community and by the Courts of just how common and how damaging such offences are. When these particular offences were committed in the late 1960s few people would have believed that an adult, let alone a priest and teacher entrusted with the care of children, would commit these predatory acts. The fact that such offences were committed so blatantly and with such frequency is perhaps one of the most notable revelations in our community in the last 50 or so years. The effects oN victims of child sexual abuse are often life-long and in many cases lead to significant issues of a psychological kind, including anxiety, difficulties trusting others, a fractured sense of self-worth and often self-blame, even where the victims, as in this case, were completely innocent of any blame at all. No one, other than the victims themselves can properly understand the full effects of such abuse, but the utterly helpless and isolated position of the young children described in the facts is obvious.

36. In recognition of the harm that such offences usually involve, s 25AA of the Crimes (Sentencing Procedure) Act 1999 requires the Court to sentence the offender in accordance with current sentencing patterns rather than those which applied at the time of the offences. The offences before the Court all involve the now repealed offence of indecent assault under s 81 of the Crimes Act. While there is a significant degree of similarity involved in many of the offences, there are some differences and in assessing the objective seriousness I must take into account all of the surrounding circumstances. In assessing the objective seriousness I have taken into account the fact that at the time of these offences the statutory offence of indecent assault included a wide range of offences some of which would today fit within very different statutory offence categories and some of which would carry much higher penalties today than they did in the 1960s.

37. In keeping with the acceptance of the prevalence and seriousness of child sexual abuse the Courts have acknowledged a change in community attitudes for such offences and have emphasised the need for serious punishment to be imposed. As was said by then President of the Court of Appeal, Keith Mason, in R v MJR (2002) 54 A Crim R 368, the pattern of increasing sentences for child sexual assault “has come about in response to greater understanding about the long term effects of child sexual abuse as well as by a considered judicial response to changing community attitudes”.

38. In assessing the objective seriousness of the offences before the Court one of the important factors is the nature of the sexual act involved: see R v PGM (2008) 187 A Crim R 152 at para 26. Each case of course must be considered in the light of its own facts and while the nature of the sexual act is important it is not the sole consideration. Rather I must take into account a range of factors including how the offences took place, their character, the age difference between the victim and the offender, the duration of the offence and the effects on the victim. Generally speaking, the younger the child the more vulnerable and defenceless he or she will be and accordingly the more serious the criminality.

39. It is, as the Crown submitted, important that emphasis be placed on general deterrence. All of the offences before the Court involved a gross breach of trust by a person from whom the victims were entitled to feel safe. Instead the offender abused that trust and used his powerful position to satisfy his sexual desires. In each offence there is also the fact that there was a very considerable age difference between the offender and his child victims. They were effectively helpless to stop the offending and no doubt thought, probably correctly, that no one would believe them if they disclosed the offences anyway. That age gap is relevant of course because it demonstrates a high degree of exploitation of the victims’ youthful naivety by a mature adult: Chamseddine v R [2017] NSWCCA 176.

40. Some of the offences before the Court were committed in front of other children and in one case in front of another teacher, although it appears that these persons were probably not in a position to directly observe what was happening. However in my view the fact that the abuse at times took place in the presence of others is something that would have increased the sense of shame and embarrassment felt by the helpless victims. While there was no physical violence or gratuitous physical cruelty associated with any of the offences, beyond that inherent in them, that of course is a common feature of this type of offending and does not mitigate its seriousness.

41. While I note that many of the victims were abused by the offender on other occasions which are not the subject of actual charges this does not increase the objective seriousness of any of the offences for which the offender is to be sentenced. However the fact that the offending was not isolated remains relevant in the sentencing exercise because it means that the offender is not entitled to the leniency that might have been applied if an offence had been an isolated or one-off event: O’Sullivan v R [2019] NSWCCA 261 at para 11.

42. I accept that the offences did not involve any real planning or sophistication but rather were spontaneous and opportunistic. But while that might be so the number of the offences and the fact that they were part of a pattern of predatory behaviour leads me to the view that the spontaneous and unplanned nature of the offences is not a matter that mitigates their seriousness significantly.

43. The offence in count 1 involving AB involved the offender patting down the victim apparently through swimming costumes and it does not appear, from the facts that I have been provided, to have been skin on skin contact. In my opinion the objective seriousness of that particular offence lies in the low range. I assess the objective seriousness of counts 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 18 and 19 as being comfortably above the low-range but below the mid-range of objective seriousness. While there were some variations in these offences, which will be reflected in the indicative sentences that I will later announce, the facts share sufficient similarity that they can broadly be grouped together.

44. Count 2 which involved the offender fondling the penis of AB, during part of which another teacher was present is an offence that I assess as being just below the mid-range. I make the same assessment in relation to count 14 which involved the offender fondling the genitals of ST whilst he lay on a vaulting horse in front of the class.

45. As to count 9 in which the offender pulled down the pants of MN and fondled his penis when they were alone in “the ferry” building, I regard this offence as being just into the mid-range. As to count 17, in which the offender, during a so-called piano lesson, removed all of the clothes of AB and kissed him on various parts of his body, I assess this offence as being well into the mid-range.

46. The Court has received victim impact statements from AB, CD, UV, IJ and ST. Each of those Victim Impact Statements explain the significant emotional harm and damage that has been experienced by each of those persons. As the Courts have said many times, in recent years, emotional and psychological harm is to be expected when offences like this are committed against young children, particularly at the hands of a trusted person as was this offender. The correct approach to the use of Victim Impact Statements has been considered by the New South Wales Court of Criminal Appeal in a number of cases including R v Tuala [2015] NSWCCA 8, R v Nelson [2016] NSWCCA 130 and Culbert v R [2021] NSWCCA 38. Considerable caution is required before a Victim Impact Statement can be used to establish that “substantial harm” has been caused. It is almost inevitable that the victim of childhood sexual offences will be left with a fractured or diminished sense of safety, feelings of a devalued or altered sense of self and uncertainty about or an inability in some cases to form trusting relationships. In many cases these effects will be lifelong. In this case the Victim Impact Statements speak convincingly of ongoing consequences of this very nature.

47. In the case of AB the Crown also relied on a psychiatric report of Dr Michael Diamond and argued that this supported a finding of substantial harm as that term is used in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. It was argued on behalf of the offender, however, that the Court could not be satisfied to the requisite standard that this has been made out. In support of this position, defence counsel pointed out that Dr Diamond was not provided with the ultimate agreed facts or final indictments on which the sentence has proceeded. Counsel also argued that the substantial redacted portions of Dr Diamond’s report make it clear that his opinions are based on material that is not part of the agreed facts and which has not been disclosed to the Court. Having regard to these matters, and also to the care required in considering a Victim Impact Statement, I am not satisfied beyond reasonable doubt that the aggravating factor in para (g) of s. 21A is made out. Having said that, I nonetheless accept without question that each of the Victim Impact Statements provide confirmation of the indelible mark that such offences will usually be expected to leave on the innocent victim.

SUBJECTIVE MATTERS

48. Turning to subjective matters relating to the offender.

49. The case for the offender has been placed before the Court by means of a number of reports, and evidence on oath from the offender himself. He has a number of medical issues, the most noteworthy being tremors which affect his voice, head and right upper extremity and most significantly his right hand. These tremors, which are progressive, were first noticed about six years ago and have gradually worsened and are described as severe by neurological specialists.

50. The offender’s background, which was affirmed by him in evidence, is set out in the psychological report of Janine Wilson. The offender and his two older sisters were surrendered to an orphanage when the offender was only 15 months old. He initially spent about two years in the Waitara Babies’ Home and then was moved to the St Anthony’s Children’s Home at Croydon where he remained until about 1945. At age seven he was transferred to St Michael’s Orphanage at Baulkham Hills which housed about 200 boys. At St Michael’s there was little education and the boys were allocated chores and worked the property. Although severe punishment was administered at times, the offender says that for the most part, the Sisters who ran the home were kind. In 1948, at age ten, the offender was moved to a boy’s home at Westmead where he suffered physical and sexual abuse. The physical abuse included being beaten on numerous occasions with a piece of wood. In addition, the offender was sexually abused by the Principal who required the offender to masturbate him or to sit on a book case with his genitals exposed and read a comic while the Principal masturbated himself.

51. At age 13 the offender was sent to commence training as a Marist Brother in Bowral. There, when aged 15, he was the subject of abuse by one of the Brothers who would enter the dormitory at night and fondle the offender’s penis while in bed. In 1959 when he was 20 the offender was transferred to the Marist Brothers Novitiate at Mittagong for formal religious training and in July of that year he was appointed to a probationary teaching position in Queensland. After this, and between about 1960 and 1969, he worked as a Marist Brothers teacher in a number of high schools in Sydney and it was during this period that the offences before the Court were committed.

52. According to the offender the late sixties involved a great deal of change and upheaval in Catholic institutions and this led to a personal crisis and near nervous breakdown in the offender. In January 1970 he took sickness leave of absence from the Order, was given $200 and a voucher to buy a suit, and commenced looking for work. He later obtained employment with the New South Wales TAB and then with a book publisher and in 1981 he opened a toy and book store in Victoria which he operated until about 1988. In 1975 he married and he and his wife had a son but this marriage dissolved in about 1995. For the past decade or so the offender has been researching and writing books about the history of the Gerringong area and relating also to Aboriginal history and has written more than 20 historical books.

53. The psychologists have expressed the conclusion that the offender’s early life was marked by extreme emotional deprivation in that he never experienced the love and support of a family. His early life involved an almost complete absence of attachment figures. He did not have the normal experiences of most children of family outings, family celebrations of birthdays and Christmas, or of having a steady parental or other figure from whom he could receive guidance. He received no guidance in relation to sexual matters. His chief source of instruction about such matters apparently was through his own sexual abuse at the hands of religious superiors.

54. In my opinion the offender’s background and deprivation and abuse provides very relevant context and some explanation for his offending, but as the offender himself eventually agreed in cross-examination, he knew as an educated man and as someone who had himself suffered sexual abuse as a child that what he was doing to these young boys was simply wrong.

55. While the offender’s somewhat exceptional background is highly relevant in providing some explanation for his offending it of course does not excuse it in any way. Nonetheless having regard to the principles discussed in Bugmy v R [2013] 302 ALR 192 a decision of the High Court of Australia, it seems to me that the offender’s moral culpability for these offences which were committed while he was still a young man is reduced to a material degree.

56. He is now 82 years of age and he has no other criminal history at all. Apart from the offences before the Court he appears to have lived a useful and pro-social life especially in recent years in his work as an amateur historian.

57. The offender is entitled to some consideration by reason of his general good character. However I attach little weight to this factor given that this was, in part, of assistance to him in providing him with the trusted position in which he was able to commit these offences: see O’Sullivan v R, previously cited, at [24]. It was argued on the offender’s behalf that I should not reach this conclusion because the facts indicate that two school Principals had been told something about the offender’s conduct. While that might be so, those disclosures clearly occurred after the offender had already commenced his offending and the fact remains that nothing was done at the relevant time to remove him from the position of trust in which he was placed, at least not before he was able to commit the offences before the Court.

REMORSE

58. The psychologist says that the offender expressed deep remorse and intense feelings of shame and guilt for the harm caused to his young victims. He told the psychologist that he did not want his victims to go through further trauma in having to give evidence at trial and this was a large part of his motivation for pleading guilty. This however must be balanced against the contents of the Sentencing Assessment Report which notes that the offender “justified his offending behaviour citing a lack of education around sex and human relationships growing up in male dominated institutions”. He also initially told the author of the Sentencing Assessment Report that he was unaware that his behaviour was wrong at the time, although when challenged by the author of that report he admitted that he had a feeling it was wrong. The offender was also challenged about these comments in cross-examination and he eventually agreed that he knew at the time that this offending was wrong. He also said in his evidence that he offered an apology to his victims which he made in court and which appeared to be a genuine one.

59. On balance, I accept the offender has expressed some genuine remorse. In coming to that view I have taken into account also the partial, although vague, admission made to Brother Canavan around the 1990s, which I consider is supportive of a conclusion that the offender did and does feel some genuine regret for his offending.

PROSPECTS OF REHABILITATION

60. As to his prospects of rehabilitation I agree with the Crown submission that the offender has effectively rehabilitated himself in that he has apparently lived a law-abiding and fairly normal life over the last 50 years. He is not, in my view, someone who presents any real risk of re-offending.

61. Clearly the offender’s age and his health problems are such that any time in custody will be onerous and considerably more difficult than it would be for a younger and healthier man.

DELAY

62. In addition it was submitted on the offender’s behalf that significant weight ought be given to the effects of delay in this case given how old the offences are, given that the offender has gone on to rehabilitate himself and given that had there not been such a delay any time in custody would have been less onerous and not such that the offender may never walk free. Delay is not a matter in mitigation in itself rather the focus must be on the effects, if any, of the delay on the particular offender. In this regard I accept that the delay in this case is such that any time in custody will be more onerous because it will be served at an advanced age and at a time when the offender is subject to the medical problems that I have already referred to. I have taken into account the delay in this respect.

ASSISTANCE ISSUE

63. It was argued, also on behalf of the offender, that he should receive some discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 on account of assistance given to law enforcement authorities in the investigation of the offences. In this regard the offender points to the agreed fact that many years after the offences, possibly in the 1990s, the offender admitted to Brother Canavan that he had sexually abused “a boy” while a teacher at Marist Brothers, Eastwood. It was conceded by the Crown in submissions that the prosecution brief against the offender did include a one page statement by Mr Canavan to the effect of such an admission although the actual contents of that statement have not been placed before me.

64. There is, in my opinion, a real question about whether this admission is even capable of amounting to “assistance to authority” within s 23. However I have assumed in the offender’s favour that it is capable of fitting that description. In those circumstances I must consider the matters in s 23(2). As to para (b) of the subsection the significance and usefulness of the admission was minimal given its vagueness and given that it was not made to police but to a former work colleague of the offender. At to paras (c) and (d), the nature and extent and the truthfulness, completeness and reliability of the admission was very much lacking. It provided no names of any victim and by referring to having sexually abused “a” student it was not an honest account of the serial offending against many students at two different schools in which the offender had in fact engaged. In relation to para (e) the admission was not timely but was made decades after the offending. In relation to para (f) the offender has received no benefits for the alleged assistance. As to para (g) he will not suffer harsher conditions by reason of the admission, and as to para (h) there is no suggestion of any injury or danger to the offender or his family by reason of the alleged assistance. Finally as to para (i) I accept that the so called assistance may well relate to one of the offences for which he is to be sentenced.

65. Having had regard to the matters in s 23(2) however I am not satisfied that it is appropriate to extend a further discount to the offender under s 23. I have however, as I have already noted, taken into account the admissions of Brother Canavan in forming view as to the existence of some genuine remorse in the offender.

TOTALITY AND ACCUMULATION

66. Given that there are multiple offences for which the offender is to be dealt with, I have of course had regard to principles of totality and to the need for any accumulation. In my view, given that there are multiple different acts, there is a need for some degree of accumulation amongst the sentences to be imposed, however of course that consideration is subject to my consideration of the principle of totality, namely the important principle of ensuring that the overall effective sentence is not one that is overwhelming or could be described as crushing.

DETERMINATION

67. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am also satisfied that the so-called threshold in s 5 of that Act has been crossed in the sense that no penalty other than full time imprisonment is appropriate. While it was argued that a Community Correction Order would amount to adequate punishment, in my opinion such an outcome would be wholly inadequate.

68. I intend to impose an aggregate sentence. In those circumstances I am required to set out the indicative sentences that I would have imposed had I not imposed an aggregate sentence. I note that the sentences I am about to refer to are those indicative sentences and they are not the ultimate sentence that I will impose, which will be announced once I have concluded my recitation of the indicative sentences.

69. For count 1 after a 25% discount the indicative sentence is six months’ imprisonment. For count 2 after 25% discount 12 months’ imprisonment. For count 3 after 25% discount nine months’ imprisonment. For count 4 after 25% discount nine months’ imprisonment. Count 5 after 25% discount eight months’ imprisonment. For count 6 after 25% discount ten months’ imprisonment. For count 7 after 25% discount nine months’ imprisonment. For count 8 after 25% discount nine months’ imprisonment. For count 9 after the same discount 18 months’ imprisonment. For count 10 after 25% discount nine months’ imprisonment. For count 11 after 25% discount ten months’ imprisonment. For count 12 after 25% discount ten months’ imprisonment. For count 13 after 25% discount ten months’ imprisonment. Count 14 after 25% discount 12 months’ imprisonment. Count 15 after a 10% discount eight months’ imprisonment. For count 16 after a 10% discount 12 months’. For count 17 after a 10% discount 22 months. For count 18 after a 10% discount 12 months and for count 19 after a 10% discount 14 months.

SPECIAL CIRCUMSTANCES

70. In terms of the head sentence and non-parole period I make a finding of special circumstances for adjusting the ordinary ratio between the head sentence and non-parole period based upon this being the offender’s first time in custody and his age and health issues.

71. The ultimate sentence that I will impose will represent only a percentage of the cumulative total of those indicative sentences that I have announced. That is a result of my having regard, as I am required to do, to the principle of totality which as I have said is one which is aimed at avoiding the imposition of a crushing or overwhelming sentence.

72. The sentence I impose is as follows. It is an aggregate sentence. The head sentence is one of seven years’ imprisonment and I impose a non parole period of four years. Each of those will date from today, 14 May 2021. The head sentence therefore will expire on 13 May 2028 and the non parole period will expire on 13 May 2025.

73. GOODWIN: I apologise your Honour, there was one thing. Would your Honour consider a recommendation that upon processing the offender be given priority access to Justice Health because he needs to be able to obtain his medications. I recommend given the significant medical issues that the offender is faced with that he be given urgent access to any Justice Health services that he requires.

**********

Decision last updated: 18 August 2021