R v Paul Raymond Evans

[2008] NSWDC 280

CITATION:	R v Paul Raymond Evans [2008] NSWDC 280
HEARING DATE(S):	19 September 2008
JUDGMENT DATE:	3 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
DECISION:	Total sentence of imprisonment of 15 years with a non-parole component of 9 1/2 years
CATCHWORDS:	CRIMINAL LAW - Sentence - Homosexual intercourse - Homosexual intercourse by a teacher - Indecent assault victim under 16 and under authority - Indecent assault male - Commit act of gross indecency with male under 18 years - Commit act of indecency towards male under 16 years - Priest - students of Boys' Town, Engadine - multiple offences over extended period against 7 victims - uncharged acts - relative seriousness of different sexual acts - breach of trust - delay in prosecution - change in legislative regime - past sentencing practice - psychological and emotional trauma to victims - good character - protective custody - deterrence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Sentencing Act 1989 Parole of Prisoners Act 1966 Probation and Parole Act 1983 Probation and Parole (Serious offences) Act 1987
CASES CITED:	Ibbs v The Queen (1987) 163 CLR 447 R v MJR (2002) 54 NSWLR 368 Bradbury v Regina [2008] NSWCCA 93 AJB v Regina [2007] NSWCCA 51 Power v The Queen (1973) 131 CLR 623 R v Moon (2000) 117 A Crim R 497 R v Way (2004) 60 NSWLR 168 Pearce v The Queen (1998) 194 CLR 610 Johnson v The Queen (2004) 205 ALR 346
TEXTS CITED:	Ross W Carter, "Australian Sentencing Digest", 1985, The Law Book Company Limited
PARTIES:	R v Paul Raymond Evans
FILE NUMBER(S):	07/11/0779
COUNSEL:	P. Adey (Crown) P. McGrath (Accused)

SENTENCE

1 HIS HONOUR: On the 17 June 2008, the offender, Paul Raymond Evans, was arraigned upon an indictment containing four counts of indecently assaulting a person who was under sixteen and under his authority, one count of committing a gross act of indecency with a male under the age of eighteen, one count of committing an act of indecency towards a person under sixteen, seven counts of homosexual intercourse by a teacher with a male pupil under the age of eighteen, and three counts of homosexual intercourse with a male under the age of eighteen. He pleaded not guilty to each of those charges whereupon he was tried before a jury. On 25 July 2008 the jury returned verdicts of guilty on eighteen counts and not guilty on two counts. The acquittals were for one of the offences of homosexual intercourse by a teacher and for one of the offences of indecently assaulting a person under sixteen under his authority. The matter was then stood over to 19 September when I heard and received evidence and submissions on sentence, before standing the matter over until today.

2 It is appropriate to commence a recitation of the facts of the case with some background and first I quote a portion of the Crown’s written submissions which is uncontroversial.

”All of the victims came into contact with the offender when they were at Boys’ Town at Engadine. Boys’ Town was and is a residential and educational facility operated by the Salesians, an order of priests and brothers within the Catholic church. The primary focus of the Salesian order is to work with disadvantaged and marginalised youth. Each of the victims was at Boys’ Town because of behavioural or learning problems often caused by a dysfunctional family background.”

3 The offender was born in 1951. During his formative years at school he came under the influence of the Catholic church in that he was educated by brothers of a religious order. His years in primary school and high school have been described in generally uneventful terms. He was competent academically and he developed a keen interest in outdoor activities through scouting and other groups. He said in his evidence that he had a lot of girlfriends. After completing his Higher School Certificate in 1969 he had taken the decision to enter the priesthood and so he commenced studies at a seminary at Springwood. As part of pastoral work experience he and some other students attended the Dharruk Juvenile Detention Centre near Windsor. This, he said, helped to crystallise his thoughts of combining his future role as a priest with helping less advantaged young people.

4 In the latter part of his third year at the seminary, which was in 1972, he came into contact with Boys' Town at Engadine. He then took the decision to defer the remainder of his studies as a seminarian. He moved back home to live with his family in Cronulla and took employment as a wardsman at Sutherland District Hospital. He worked as a volunteer at Boys' Town on a part time basis. After a year of being back in the community he said he was then faced with the choice between a celibate and a non-celibate life. Having had the opportunity to work with disadvantaged boys at Boys' Town, and the prospect of continuing with that work as well as becoming a priest, he decided upon the former of those choices. He applied to join the Salesian order and he was accepted into its college at Lysterfield in Victoria in January 1974.

5 He remained at that college for the next three years. At the end of 1974, after living what he described as a life of poverty, chastity and obedience, he took his first vows. At the end of 1976 he took his final vows and became permanently devoted to such a life. In his time at Lysterfield he had also completed his teaching degree. In 1977 he was posted to a regional college of the Salesian order at Chadstone where he taught high school students.

6 In the year the offender worked at the college at Chadstone he also worked weekends at a youth centre on Brunswick Road in Melbourne where he assisted with underprivileged children. This year was part of a practical training exercise. At the end of that year he was then appointed to a position at Boys' Town where he commenced in January 1978. The offender described the situation at Boys' Town at that time as involving interaction with, and supervision of, 160 or so boys, twenty-four hours a day, seven days a week. It was still school holiday time when he took up his appointment. Most of the boys were away either living with their families or with volunteer host families. When the school year started the offender was allocated to dormitory duties in which he assisted two other Salesians to generally supervise the boys in what was then the senior dormitory from early in the morning until late at night.

7 Boys came to be sent to Boys' Town by being referred by local priests in their community if it was identified that they would benefit from being at Boys' Town, or they would be referred from the Juvenile Justice system and the courts. Others would come because their families simply could not cope for economic reasons, and some were there as orphans.

8 I do not think it is necessary to go into great detail about the infrastructure at Boys' Town except to say that the facilities included dormitories, initially just a senior and junior dormitory, but later a middle dormitory was added, a chapel, schoolrooms, and various recreational areas such as a swimming pool, tennis courts and the like.

9 The boys’ recreational pursuits comprised activities within the Boys' Town campus as well as a variety of off-site activities. Bush walking, camping, canoeing, abseiling, surfing, as well as organised sporting activities, were amongst those available for the boys to engage in. Often there were overnight and weekend trips away. Boys' Town owned a house at Bundeena which was used in the context of these off-campus activities.

10 So much for background. I come now to the offences that occurred in the 1970s for which the offender was found guilty.

11 WC was born in April 1963. His parents separated when he was about seven. He and his older brothers ended up being placed at Boys' Town. He was there from 29 March 1971 until 8 February 1978. He had no contact with either his mother or father in the first two years. He then left and lived with his mother for a few weeks in February 1975 but that did not work out and he was returned to Boys' Town. He tried living with family again for three months in 1976 but he got into trouble with the police and was again returned. He did not realise it at the time but he later learned that he had been made a State ward.

12 WC was asked what his time was like at Boys' Town and he said it was bad. He spoke of a lot nights spent crying and a lot of days being lonely. He said he was scared. He was there a long time and he was only a little boy. Over time it got worse. He was subjected to bullying by other boys and to sexual molestation by priests, first by Father Fleming, the then rector of Boys' Town, now deceased, and then by the offender.

13 The first specific occasion he could recall in relation to the offender is the offence that comprises count 1, an offence of indecent assault upon a male person between 1 December 1977 and 8 February 1978 (an offence against s 81 for which the maximum penalty is imprisonment for five years). WC said that it was at night and he was returning to the dormitory from an aero-modelling class when he came across the offender near the theatre or TV room. He was told to come inside. WC said he was scared. Once inside the room the offender took each of their pants off, said, “Everything’s all right, it’s natural, you’ve done this before.” This may have been a reference to earlier molestation by Father Fleming. The offender then lay WC down, lay on top of him, and rubbed his erect penis up and down on him until he ejaculated. Semen was over WC’s body, primarily on his leg. The offender then told him not to say anything because no-one would believe him. WC wiped the semen off and said he had to go to bed without having a shower. He said he could still smell the semen. It must have haunted him because he later burnt his leg with molten plastic to try and rid himself of the taint. Some time later when he realised that did not get rid of the memory he tried to get rid of his leg by tying a tourniquet around it. This caused blood clots and subsequent complications. He still bears the scars.

14 Count 2, also an offence of indecent assault upon a male person between 1 December 1977 and 8 February 1978, involved similar behaviour by the offender but on this occasion it occurred in the dormitory. It was during holiday time and most of the other boys were away. He said it was late at night and he was either alone or there were few other boys around. The offender came and woke him from his sleep. He lay on his bed, removed his pyjamas and his own clothes, lay on top of him and rubbed up and down until he ejaculated.

15 WC said that after this happened he just had to get out of Boys' Town. He ran away and sought out his father and lived with him for a short time. He told his father that he had been touched by a priest at Boys' Town and his father laughed at him. In response, WC burnt the house down and thereafter lived on the streets.

16 There was an issue at the trial as to whether these events could have occurred, given that the offender did not come to Boys' Town until mid-January 1978, and there was a record that indicated that WC left on 9 December 1977. WC said that the record was wrong and that he was definitely still at Boys' Town in early 1978. it is unnecessary to refer to the evidence in detail but in short, I am satisfied that it was open to the jury to doubt the accuracy of the record and accept the evidence of WC. WC impressed as a most credible witness.

17 JT was born in May 1965. He was at Boys' Town from September 1976 until December 1979. He was the eldest of three children in a single parent family which he described as being very poor. His father had left the home when he was aged about five. When he was about nine or ten he started to get into trouble in that he was truanting from primary school, and he engaged in shoplifting. His mother spoke to the Department of Youth and Community Services and as a result a decision was taken to place him at Boys' Town. In the three years that he was at Boys' Town he said he saw his family between two and four times a year. He said there was an opportunity for parents to come to visit at Boys' Town on Sundays but that rarely happened for him. He did, however, have an opportunity to go home during holidays.

18 The offender became involved with JT in the context of outdoor recreational activities and in working on hobbies such as model building. He recalled going away from Boys' Town to go fishing, surfing and bush walking. There were overnight camping trips or retreats. JT remembered one particular camping trip that was somewhere near Bundeena. He recalled that this was after he had been at Boys' Town for about two and a half years. There were somewhere between twelve and twenty boys involved in the trip.

19 After the evening meal at the campsite the boys were sitting around the campfire with the offender when the offender asked who wanted to sleep in his tent. The offender motioned towards one boy who declined and so JT put up his hand and said he wanted to. He thought it would be a treat. A short time after this the offender suggested that JT go to bed as it was getting late. JT went to the offender’s tent and got into his sleeping bag. The offender came in when he was half asleep. He suggested that JT would be cooler if he opened up his sleeping bag. He did that and went back to sleep. Some time later he awoke to find the offender’s hand on his shorts, fondling his penis. JT was scared and confused and did not know what to do. After a few minutes the offender stopped doing that but took JT’s hand and placed it on his own penis and had JT’s hand rubbing his penis. He recalled the offender’s breathing was heavy. This went on for a few minutes until JT pretended to wake up and told the offender that he had to go to the toilet. He joined a few other boys who were still sitting around the campfire. He was in a state of shock and was scared and confused. He remembered telling one of his friends but he was not sure whether he was believed. He spent the rest of the night sleeping by the campfire.

20 Those two acts are the offences in counts 3 and 4 which are each offences of indecently assaulting a male person between 1 January and 31 December 1979 (s 81 - five years).

21 After the camp was over and the boys had returned to Boys' Town, JT mentioned being touched by the offender to a number of other boys. This came to the attention of Brother Mason who spoke to him about it. He recalled being taken to speak with Father Fleming. On his recollection Father Fleming told him that some things happen, that men get urges, and that it did not mean anything. JT said that he was left feeling very confused. He said that he had grown up without a father, that he felt vulnerable and frightened and did not have any adult person he could talk to. Thereafter the matter was not spoken of again. JT kept recalling Father Fleming’s advice, that it was just one of those things that happened and that he should not worry about it. JT also remembered that he received more favourable attention thereafter from the offender in relation to model car building and that made him feel special.

22 Up until this incident occurred on the camping trip, JT said that he had loved being at Boys' Town. He had come from a broken home and he said he had been off the rails, but at Boys' Town he had been provided with many new opportunities. He was doing well at school and getting to go to places that his mother could never have taken him. After the incident, notwithstanding the favourable treatment he was receiving from the offender, he had the impression that everyone else, including the brothers and priests at Boys' Town, knew about what had occurred. He was the subject of teasing from some of the other boys. He begged his mother to allow him to come home and at the end of the year he did leave Boys' Town and went home to live with his mother.

23 JT said that initially he did not tell his mother about what had happened because he was too ashamed. At some later stage he did start to try and tell her but said that she did not want to hear about it and could not deal with it and never wanted him to speak about it again.

24 Those are the facts relating to the offences that were committed in the 1970s comprising counts 1 to 4 on the indictment.

25 The offender left Boys' Town in the summer of 1979/1980. For the next four years he undertook theological studies at a college owned by the Salesians at Oakleigh in Melbourne. Whilst engaged there in full-time studies, the offender also involved himself with the local youth centre.

26 In June of 1983 the offender was ordained as a priest in the Salesian order.

27 Having completed his studies at the end of 1983 he was posted to the St John’s Boys’ Home in South Australia for the first half of 1984. The balance of 1984 he spent teaching at a boarding school called Rupertswood in Sunbury near Melbourne. At the end of 1984 he was advised that his next posting was a return to Boys' Town and he arrived back there in the middle of January 1985. There had been some quite significant changes in the time of his absence. The number of boys had been reduced to about forty, whilst the religious staff number had remained at eight. There were now three dormitories rather than two. He was allocated the duty of supervising the middle dormitory.

28 DT was born in February 1971. He was at Boys' Town from the age of fourteen until seventeen, that is from July 1985 until November 1988. He was in the middle dormitory for all of that time.

29 DT was born in New Zealand but was adopted and lived in Sydney until he was sent to Boys' Town. I take it the reason he was sent to Boys' Town was because of some conflict within his family. He said he enjoyed his time at Boys' Town as it provided a relief from his home life. He said there were options for sport and options for making friends. He said however that his time at Boys' Town was tainted by the offender’s behaviour towards him.

30 DT said that, generally speaking, he got on quite well with the offender. He described him as authoritative yet approachable. He looked upon the offender as a father figure.

31 He developed a friendship with the offender and found it easy to communicate with him. DT said that in the dormitory after lights out the offender would come to his bed and talk to him and rub or scratch his back. He found this quite comforting. This became quite a regular occurrence. He said that there were times when he would fall asleep and then wake up later and find that the offender was still there.

32 As part of his role as dormitory master, the offender used to sleep in a curtained off cubicle at one end of the dormitory. At one point at night after lights out, he asked DT to leave his bed and come to his cubicle. DT complied. They lay in the offender’s bed and initially the offender scratched his back which DT said he enjoyed. The offender then asked DT whether he would like to experience a ‘new feeling.’ He did not explain what it was. However he proceeded to remove DT’s pants and masturbated DT to the point of ejaculation. The offender then proceeded to masturbate himself in DT’s presence, also to the point of ejaculation. DT said that it became a regular occurrence for the offender to take him to his cubicle and for the offender to masturbate him. The offender masturbating himself, however, occurred only on the first occasion that he was in his cubicle. DT said that he could not remember how many times this happened except that it happened regularly, right up until not long before he left Boys' Town.

33 The first occasion of the offender masturbating DT comprised the offence in count 5 of committing an act of gross indecency with a male under the age of eighteen (s 78Q(1) - 2 years). The accused masturbating himself on that occasion comprised the offence in count 6 of committing an act of indecency towards a person under sixteen (s 61E(2) - 2 years).

34 SV was born in April 1972. In his youth he preferred to be known as S because people had difficulty pronouncing his first name. He was at Boys' Town from May 1986 until November 1988. Accordingly, he was there from the age of fourteen until sixteen. His parents separated when he was around the age of seven. His parents moved around quite a lot and he lived either with his mother or in foster homes. He had no contact with his father at all after the separation. He described his relationship with his mother as ‘troubled.’ He was not coping at school, nor at home, and was getting into trouble to the point where a decision was made for him to go to Boys' Town. SV seems to have settled in to Boys' Town rather well in that, whereas in the past, he said he never really had friends, here he was able to mix with other boys and also engage in activities that appealed to him like surfing, diving, fishing. SV said that he related well with the offender, not only in his capacity as dormitory master, but also as the person who took the boys on outdoor activities. He described the offender as being ’really affectionate towards me’ and also as a ‘pretty hands-on sort of person.’

35 SV said that of a night after lights out in the dormitory the offender used to come to his bed and whisper to him and also touch and rub him. He said this escalated over time and it developed to the stage where there was a lot of fondling and petting going on. He said on occasions he would be either half asleep or asleep and would awake to find the offender doing this.

36 Count 7 is an offence of homosexual intercourse by a teacher with a male pupil under the age of eighteen (s 78N - 14 years). SV said the fondling and petting escalated to the offender ‘putting his head under the covers and putting his mouth on and around my penis.’ SV said that the sexual touching and fondling continued up until about February 1988 but the event that the Crown relied on for count 7 was the first occasion of the offender engaging in oral sex with SV.

37 SD was born in February 1972 and was at Boys' Town from July 1985 until November 1988, that is from the age of thirteen until sixteen. He was in the middle dormitory that the offender was in charge of in 1986 and 1987. SD had been sent to Boys' Town by a Children’s Court Magistrate. He described himself as a very hyperactive young person who was getting into trouble doing “silly things”.

38 SD said that he really enjoyed life at Boys' Town, particularly the social life and sporting and outdoor activities. However, after a few weeks or perhaps after a month after starting to live in the middle dormitory SD said that the offender started coming to his bed at night, fondling and groping him. He said he would touch him on the penis and around the groin. The Crown relied upon the first of these occasions as comprising the offence in count 8, an offence of indecent assault upon a person under sixteen by a person in authority (s 61E(1A) - 6 years).

39 Count 9 is an offence of homosexual intercourse by a teacher with a male pupil under eighteen (s 78N - 14 years). In relation to this, SD gave evidence that the offender took him to what SD referred to as the ‘priests’ quarters’, meaning the private living area available to the priests that were adjacent to the middle dormitory, and made him take the offender’s penis into his mouth. He said the offender ‘made me put my mouth around his penis and go down on it.’ He said that he did not want to do it but the offender gave him alcohol on this occasion and ‘manipulated me into doing it.’ By reference to other evidence this event occurred in about June or July 1986.

40 Count 10 is also an offence of homosexual intercourse by a teacher with a male pupil under eighteen (s 78N -14 years). SD gave evidence of an incident of oral sex in the showers. He said there was an occasion when there was some sport or after school activities and the offender did not allow him to go. He said the two went in to the shower area where the offender fondled him and then put SD’s penis into his mouth. This occurred some time between June 1986 and June 1987.

41 Count 11 is another offence of homosexual intercourse by a teacher with a male pupil under eighteen (s 78N -14 years). In relation to this, SD gave evidence of an occasion when there was an afternoon excursion to a place that he thought was Garie Beach. He said the offender, himself and some other boys were there. Whilst the other boys were swimming or otherwise engaged in beach activities, the offender took him to the Kombi van they had travelled in. The offender first told him to sit in the front seat so that they could be sure that no nearby residents were watching, and then told him to get into the back of the van. Once there the offender began to fondle him, pulled his pants down, and then took SD’s penis into his mouth. He said he ‘started sucking it, going down on it.’ SD added that the offender knew that he was not keen on this so the offender ‘did it quickly and then shooed him off.’ This event occurred some time between June 1986 and the end of 1987.

42 Count 12 is an offence for which the jury returned the verdict of not guilty. The acquittal is explicable for the reasons discussed in the proceedings on sentence.

43 AK was born in May 1972. He was at Boys' Town when he was aged fourteen and fifteen from September 1986 until December 1987. He was the middle of three brothers. He said he was diagnosed with ADHD at some time when he was in primary school. He said his behaviour at school was disruptive and being sent to Boys' Town was a last resort. Initially he was in the middle dormitory where the offender was the dormitory master and he spent the latter part of his time at Boys' Town in Dunlea which was the senior dormitory.

44 AK said that initially he had difficulty sleeping and the offender used to come to his bed and comfort him which included massaging him. He said this progressed to the point where the offender started to fondle his genital area. He said this and other sexual activity occurred on subsequent occasions but in relation to count 13, an offence of indecent assault upon a person under sixteen by a person in authority (s 61E(1A) - 6 years), the Crown relied upon the first occasion of the offender fondling AK’s genitals in AK’s bed.

45 AK left Boys' Town after attaining his school certificate at the end of 1987. He and the offender kept in contact. In early 1988 the offender was charged in relation to an allegation of molesting a boy at Boys' Town. That matter went to court and the charge or charges were subsequently dismissed. However at some stage whilst that charge, or those charges, were pending, the offender made contact with AK and told him that he had been accused of molesting a boy and suggested to AK that if anyone was to ask AK about the offender he should speak favourably of him. In this context the offender asked AK if there was anything he could do for him and AK said something about wanting to go flying. The offender agreed to arrange this as by this stage the offender had obtained a light aircraft pilot’s licence. AK’s perception was that this was some sort of bribe for him to keep his mouth shut. AK gave evidence of the offender coming to AK’s home one night and having dinner with the family, in the course of which permission was given for the offender to take AK and his younger brother flying. The arrangement was for the offender to take the two boys flying and also to take them on the same weekend to the Boys' Town house at Bundeena to spend the night. The offender was living at that house because he had been suspended from duties at Boys' Town. This evidence of AK’s was supported generally by his mother and his younger brother.

46 AK said that when they were at the Bundeena house that weekend he slept in one bedroom and the offender had his younger brother sleep in another room. AK said that during the night the offender came to him and ‘he touched me, he got me aroused, then he performed oral sex and made me perform oral sex and then he performed anal sex.’ These three forms of intercourse comprise the offences of homosexual intercourse with a male under eighteen which are counts 14, 15 and 16 (s 78K - 10 years).

47 DP was born in March 1973 and was at Boys' Town from February 1986 until August 1988, that is, from when he was aged twelve to fifteen. He said he was the fifth youngest of six siblings. His father was away from home a lot in the course of his work. His mother was diagnosed with multiple sclerosis when he was very young. He described his home life as difficult for these reasons. His elder siblings had left home by which time DP was left to do a lot of the domestic chores around the house. He found school difficult and by the time he got into Year 7 he was truanting. He said the reason for this was that he had been sexually molested by the school principal. It apparently reached the point where he was going to be expelled from school and the decision was taken to send him to Boys' Town.

48 DP was first placed in the junior dormitory but he was in the offender’s dormitory in 1987 and for at least the first term of 1988. Like a number of the other complainants, DP found considerable enjoyment at Boys' Town in that he too enjoyed the sporting and outdoor activities. He spoke of the offender taking himself and other boys away on camping and fishing trips. DP said that the offender had favourites among the boys and they included not only himself but also XV and SD. These boys received preferential treatment in terms of outdoor activities and weekend trips away. In fact, there was a considerable body of evidence in the Crown case of the offender providing such preferential treatment to certain boys but it is unnecessary to go into the detail of it now.

49 Count 17 was an offence which was alleged to have been committed on one of those trips. However, the jury returned a verdict of not guilty in respect of that matter and, as in the case of count 12, that acquittal is explicable for the reasons that were discussed at the proceedings on sentence.

50 Count 18 is an offence of homosexual intercourse by a teacher with a male pupil under eighteen (s 78N - 14 years). In relation to this the evidence was that the offender came to DP’s bed in the dormitory where there was some touching and fondling and then the offender led DP to his own curtained off sleeping area where he again touched DP’s penis and fondled it until it was erect and then put his mouth on it.

51 Count 19 is an offence of indecent assault upon a person under sixteen under authority (s 61E(1A) - 6 years). This relates to an incident in which the offender took DP to his curtained off sleeping area, undressed him and told him to lie on the bed. The offender then went and got some butter and returned and rubbed it on DP’s groin. The offender then lay on top of DP and pressed his erect penis against him and ‘did the motion like I was a woman and did his business’ until he ejaculated. DP gave evidence of this happening on more than one occasion but the Crown relied upon the first occasion of that happening to comprise count 19.

52 Count 20 is also an offence of homosexual intercourse by a teacher with a male pupil under eighteen (s 78N - 14 years). In relation to this matter the evidence was that the offender took DP into his cubicle where he asked DP to suck his penis. DP told him he did not want to but the offender kept saying, ‘it is all right.’ DP eventually agreed to do so if the offender put a condom on. He said that the offender did so and DP then complied but he said that it made him feel disgusted and sick and so he only did it for about ten seconds before stopping.

UNCHARGED ACTS

53 There was evidence in the trial of other sexual activity that the offender engaged in with the complainants who were DT, SV, SD, AK and DP. There was no such evidence in relation to the complainants WC and JT. There was evidence of sexual misconduct by the offender with MO, whose name also should not be published, but those incidents occurred in Victoria and so, of course, could not be the subject of proceedings in this jurisdiction. At the trial the Crown relied upon this evidence of uncharged sexual acts as establishing a tendency by the offender to sexually assault pubescent boys. As those acts are not the subject of charges for which the offender has been found guilty he is not to be punished for them. The relevance of those other acts at this stage is simply to deny to the offender any leniency that might have been extended to him if the charged offences for which he was found guilty by the jury were isolated incidents. However, because there are eighteen offences, none of them could really be regarded as isolated aberrations in the offender’s conduct.

OBJECTIVE SERIOUSNESS OF THE OFFENCES

54 There are a number of features to be considered in assessing the objective seriousness of the offences. One is the nature of the activity that comprised the assaults. Where the offences involved penetration, some forms of penetration can be regarded as more serious than others: see Ibbs v The Queen (1987) 163 CLR 447.

55 Mr McGrath, counsel for the offender, has submitted that I should regard the act of anal intercourse with AK as being more serious than the incidents where the offender penetrated the mouths of a complainant which, in turn, should be regarded as more serious than the incidents where the offender committed acts of oral sex upon a complainant. I am prepared to accept that the act of anal intercourse is the more serious but when I have regard to all matters relevant to the assessment of the seriousness of the oral sex offences, I do not think consideration of whose penis was in whose mouth is of any great significance. The Crown accepts that fellatio is less seriously criminal than anal intercourse.

56 An important matter to recognise in making this assessment of the seriousness of the offences in relation to the complainants WC and JT is that the law in relation to sexual assaults was dramatically overhauled and updated in 1981 and again in 1984. Prior to that, sexual intercourse was restricted in meaning to penile/vaginal intercourse and homosexual intercourse, then referred to as buggery, was restricted to meaning penile/anal intercourse. That meant that all other forms of sexual assault were classified as indecent assaults or acts of indecency. For example, an act of digital penetration or oral sex would have been prosecuted as an indecent assault whereas after the reforms of the early 1980s it could be prosecuted as sexual intercourse or homosexual intercourse. As a consequence, something that might be held now to be, say, in the middle of the range of seriousness would in the 1970s have been regarded as being lower down the range.

57 Another matter to take into to take into account is that each of the offender’s crimes were committed in a gross breach of the trust that reposed in him as a teacher, either priest or brother, and dormitory supervisor or master. He was in a position of power and authority. He was entrusted with the care of boys, generally speaking, who were at Boys’ Town because of a variety of personal difficulties they had experienced in their short lives. These boys were particularly vulnerable. With the exception of JT, in respect of whom the offences were committed on an opportunistic single occasion, and WC, in respect of whom there were no uncharged acts, the offender cultivated the complainant’s compliance with his unbridled sexual urges.

58 The offences in counts 14 to 16 occurred after AK had left Boys’ Town. However, the breach of trust element was still there in that the offender was playing on the trust that he had developed in his relationship with AK at Boys’ Town and, moreover, he had obtained the permission of AK’s mother to take away and, implicitly, care for AK and his younger brother for that weekend.

59 I am satisfied that the offender knew that he was protected from discovery because of his manipulation of the boys’ wills and because they did not have the psychological wherewithal to complain. I am also satisfied that he realised that even if a boy was to complain to another of the priests or brothers at Boys’ Town there was a fair chance that nothing would come of it. As was said more than once during the trial, who would believe that a priest would do such things to a boy in his care? Moreover, the offender would not have forgotten that nothing happened when questions were raised as to what had gone on at the camp near Bundeena when JT was assaulted. He knew what he had done on that occasion and must have thought he had got away with it, thereby adding to his confidence that his offending behaviour was almost immune from discovery.

60 In relation to this issue of breach of trust, I am conscious that this is inherent in the offences of a teacher having homosexual intercourse with a pupil and indecent assault upon a person under sixteen who was under his authority. However, the relationship between the offender and the complainant in respect of those charges went beyond one of mere teacher/pupil or having authority over the complainants. As it is something that is present to a degree that exceeds the threshold to make out that relationship it remains a matter of aggravation. Nevertheless, in respect of those offences, the breach of trust aspect must be discounted in its significance to an appropriate degree in order not to double count.

61 The Crown’s analysis of this aspect is most apt so I will quote that portion of the Crown’s submissions:

“Overall, the prisoner was in a unique position of authority in relation to the victims. He was responsible for their physical, emotional, educational and spiritual welfare. At the time of the earlier offences (1978 and 1979) he was not the primary authority figure in the boys’ lives at Boys’ Town but he did share responsibility for their wellbeing with other Salesians. Those offences could be regarded as more opportunistic than the latter ones, in that he took advantage of his temporary proximity to the particular boy (WC and JT) to seek sexual gratification.

The latter offences (1985 – 1988) involved a more sinister and calculated breach of trust. They occurred in an environment where the prisoner had virtually total responsibility for the boys - the middle dormitory. He cultivated the boys’ affection by engaging with them in outdoor activities and by rewarding selected boys with special treats or privileges, such as weekend camping trips. Within the dormitory he exploited their genuine affection towards him by molesting them in their beds and later in his own bed. For some of the victims he was the only adult male presence” - I would add, of significance - “in their lives. He exploited their emotional vulnerability for his personal sexual gratification. He was highly regarded by the parents of some of the boys who, in good faith, entrusted their sons to his care, especially outside normal school hours. He breached the trust of the boys, their parents, and the community” - and I would add, and of his church - “in a most egregious way.”

62 Another matter of significance is the psychological and emotional trauma occasioned to each of the complainants. I am satisfied that the memory of what the offender did has haunted each of the complainants ever since and it has had a negative effect on their lives in a variety of ways. The extent of this trauma has quite obviously been substantial but beyond saying that, it is difficult to assess it with any precision because, as was submitted, the complainants already had experienced emotional and social disadvantage before coming to Boys’ Town. Two of them had already been sexually abused by another adult. However, the offender played a significant role in the pastoral care of each of the boys. He was well aware of the difficulties they had experienced in their lives before they came to Boys’ Town. If I am to be cautious about attributing their subsequent life difficulties to the offender’s criminal activity, then I should also take into account that he offended against boys whom he knew were more vulnerable than most.

63 Mr McGrath has submitted that I should be “wary about making a finding under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act that the emotional harm caused was in any case substantial for the purpose of aggravating the offence because the court would presume that offences of this description occasion emotional and psychological harm to the victim”. I think that is right because these are offences specifically directed at sexual abuse of children and the heavy penalties that are provided are, in part, in recognition of the substantial harm that such activity occasions to the victims. In saying this I should not be taken to be saying that I do not accept that substantial harm was caused. Clearly it was. I have the evidence of each of the complainants in the trial as well as the Victim Impact Statement of DT that establishes this. What I am saying here is that it would be double counting for me to have regard to the maximum penalties for the offences which has inbuilt recognition of the harm such offences cause and then to also find that the severity of the offences is aggravated because substantial harm was caused.

64 Mr McGrath has submitted that in assessing the objective seriousness of the offences I should take into account that “for the large part the offences were low on the scale of actual violence with no evidence of physical injury”. I accept that submission. None of the offences involved any allegation of physical violence beyond the sexual act itself.

65 Having regard to all of the circumstances, including the ages of the complainants relative to the age element that is specified in most of the offences, but particularly the various matters I have just been discussing I assess the objective seriousness of the offences as follows. The offences concerning WC, DT, XV, counts 9, 10 and 11 in relation to SD, counts 14 and 15 in relation to AK, and counts 18 and 20 concerning DP are in the middle of the range for offences of their respective types. The offences concerning JT, count 8 relating to SD and count 13 in relation to AK are below the middle of the range. The offence in count 16 concerning AK, and that in count 19 concerning DP, are above the middle of the range. They are not in the worst case category but they are, nevertheless, very serious examples of those types of offences.

DELAY IN PROSECUTION

66 The complainants gave various reasons why they either did not complain about the offender’s conduct at the time, or, if they did, why they did not persist with the complaint. I will not go into the reasons they gave - that evidence is available in the trial transcript - but suffice to say that the reasons they each gave were credible. The question of whether there was any collaboration between any of the complainants before they had made their complaints to the authorities was thoroughly explored at the trial and it was quite clear that there had not been.

67 The fact of the matter remains, however, that there has been an extensive period of time that has elapsed between the commission of the offences and now. This is relevant to my sentencing task in two ways. The Court of Criminal Appeal held in R v MJR (2002) 54 NSWLR 368 that in a situation such as this case presents the sentencing court is to take into account the sentencing practice as at the date of the commission of an offence. Identification of that sentencing practice is not without difficulty. It has been the subject of discussion in a number of recent cases including Bradbury v Regina [2008] NSWCCA 93, and AJB v Regina [2007] NSWCCA 51.

68 The regime of sentencing in the 1970s and 1980s was governed by the Parole of Prisoners Act 1966, and then the Probation and Parole Act 1983. Remissions of either one-third or one-quarter were applied to the head sentence under the former Act and to the non-parole period as well under the latter. This regime was in place until the Sentencing Act 1989 was proclaimed to commence in September 1989 and so it applied throughout the period of the offences in the present case. No allowance was made for the remission system when sentences were imposed. It has recently been held that when a court now sentences for offences committed when the earlier regime applied no regard should be had for the fact that sentences in those days were reduced by operation of the remission system: see Bradbury v Regina and AJB v Regina.

69 For most of the time under the earlier regime, there was no statutory regulation of the proportion of the head sentence that was made up by the non-parole period. It was not until 1 January 1988 that provision was made by the Probation and Parole (Serious Offences) Amended Act 1987 for non-parole periods to be three-quarters of the total sentence for certain “serious offences” unless the circumstances justified a shorter period and 25 September 1989, that such a requirement applied to all offences unless there were special circumstances. Some of the offences that I am concerned with in this case were committed in the period in which the 1987 Amendment Act applied. However, none of the offences meet the classification of “serious offences” that the Amendment Act provided.

70 In AJB it was noted that in 1982, non-parole periods were in the order of one-third to one-half of the total term of the sentence. In Bradbury, no material was placed before the court as to the pattern of non-parole periods in the 1970s but Matthews AJ, with whom the President and Latham J agreed, felt it was reasonable to assume that it was in the same order as that which applied in 1982, that is, somewhere between one-third and one-half of the total sentence. I have reviewed a large number of New South Wales sentencing cases for a period from the early 1970s to mid 1985 that are collected in Ross W Carter, “Australian Sentencing Digest”, 1985. The Law Book Company Limited, and in the 1985 supplement to that work, and it confirms the reasonableness of that assumption for that period. That is not to say that there were not exceptions. Some cases involved non-parole periods greater than one-half and, indeed, in some cases there was no non-parole period set at all. What I make of this is that I should have regard to the usual one-third to one-half proportion that applied under that earlier sentencing regime but I should not feel constrained to impose non-parole periods in the present case of that proportion if there is good reason to do otherwise.

71 Having regard to the regime of sentencing that prevailed at the time of the offences has been accepted as a special circumstance under the present legislation justifying a departure from the now mandated usual expectation that non-parole periods will be three-quarters of the total sentence. Other matters that Mr McGrath has submitted that I should consider in this context of special circumstances are the age of the offender and that this will be his first experience of imprisonment. I do not believe that those matters warrant an expansion of the parole period at the expense of the non-parole period because the parole period that will be allowed is more than adequate for assistance to be provided to the offender by the Probation and Parole Service to re-establish his life in the community following release. The accumulation of sentences, which it has been conceded I must order at least partially, is another matter that I will take into account. I must also, however, take into account what the majority in the High Court said in Power v The Queen (1973) 131 CLR 623 at 627 that the non-parole period should represent “the minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention”. In the same case, at 628, it was held that general deterrence is amongst the objectives in relation to setting the non-parole period. I record here that I have set the non-parole component of the total effective sentence with what was said in Power v The Queen firmly in mind. It is for that reason that the non-parole period I am to impose will be greater than the one-third to one-half proportion that usually obtained.

72 Another matter relevant to the principle that I must sentence in accordance with the sentencing regime that applied at the time of the offences is to determine whether any particular range of sentencing is identifiable. That poses a difficulty. There is, to my knowledge, no statistical material available to indicate what range of penalties were imposed for these kinds of offences in the 1970s and 1980s. Absent that, and there being no other available means of identifying any sentencing range, for the correct approach I draw from the following in the judgment of Howie J in R v Moon (2000) 117 A Crim R 497 at 511 [70] – [71], case citations omitted, which was referred to and applied by Sully J in MJR:

“70. The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon a particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence, and be proportional to the criminality involved in the offence committed. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

71. When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of the offending and consistently with the approach adopted by sentencing courts at that time.”

73 The other way in which the delay is relevant is that in the intervening period there is no suggestion that the offender has committed any further offences. The fact that he offended on a persistent basis with a number of boys in the 1970s and 1980s and then has not continued to do so in the ensuing twenty years or so can be taken as an indication that he has gained some control over his impulses. Of course, the opportunity for him to commit offences of this nature in this type of cloistered environment was taken away from him when he was stood down from Boys’ Town and required to live elsewhere in February 1988. On the question of his likelihood or unlikelihood of re-offending, it is pertinent to bear in mind the lack of any further offences, as well as the fact that his access to children will be subject to restrictions when he is released from custody. So, should I find in his favour the statutory mitigating features in s 21A(3)(g) and (h) that he has good prospects of rehabilitation and is unlikely to re-offend? One matter of concern in this respect is that he has not acknowledged his offences - he continues to deny them - and therefore cannot be said to have any insight into his offending behaviour. Another matter of concern is that there is no psychological or psychiatric material before me that would indicate what drove the offender to offend as he did. Often in cases such as this an offender claims to have been depressed at the time, to having had a problem with alcohol abuse, that there was an isolated aberrant yielding to temptation, or there is some other explanation. Here there is nothing. The only report I have is the Pre Sentence Report and the Probation and Parole Officer there indicates nothing by way of possible explanation. All I can conclude is that the offender was driven by impulses that he would not, or could not, control to derive some base sexual gratification from vulnerable boys who were readily available to him and in respect of whom he was in a position of power and authority. Having regard to all of these matters, I am prepared to find the offender has reasonable, but not good, prospects of rehabilitation. Is he likely to re-offend? I am afraid I just do not know.

GOOD CHARACTER

74 Aside from his commission of the offences for which of he has been found guilty the offender was otherwise a person of good character. A large number of testimonials before me speak of a variety of very positive personal attributes he has and of the many and varied forms of assistance he has provided to people in the community. I will take this into account but it is something that has less significance in a case such as this than it might in other types of cases.

PROTECTIVE CUSTODY

75 A submission was made that I should take into account that the offender will serve his sentence in protective custody. I am prepared to accept that it is quite likely that he will do so because of the nature of his crimes. However, there was no evidence placed before me as to what this will entail if it should occur. It is well known now that arrangements are made for the housing of prisoners serving sentences for such offences. In the ordinary course they are not subject to any particular or unusual deprivations in terms of the time they spend each day in their cells or in their access to facilities and programs. I am mindful of what the Court of Criminal Appeal has said in recent years on this subject: see, for example, R v Way (2004) 60 NSWLR 168 at [176] – [177]. Accordingly I do not propose to make any allowance for this topic in the assessment of the appropriate sentences to impose.

DETERRENCE

76 In the passage I have quoted earlier from Moon it is clear that general and personal deterrence is a matter to be considered. In the present case, personal deterrence is a consideration, but not to a major extent, because the offender is unlikely to be in a position ever again like he was in at the time of the offences. His access to children will be limited. Nevertheless it is not completely irrelevant, particularly in view of my finding that I cannot determine whether he is unlikely to re-offend. General deterrence also has some significance in sentencing for offences of this type. Mr McGrath has conceded in his written submissions - correctly, if I may respectfully say so - that “any sentences imposed must embrace a substantial element of general deterrence”. It cannot lead to a sentence that is out of proportion to the objective gravity of the offences but it must be given weight. So too must I give weight to denouncing the offender’s conduct and making him accountable for what he did, and the harm he caused, to each of his victims.

COMPARATIVE CASES

77 There were quite a number of other cases to which I was referred by Mr McGrath and the Crown Prosecutor which involved sentencing of paedophile offenders for multiple offences. No two cases are exactly alike of course. I have derived some guidance as to the approach I should take in this case from a review of those cases. Some of them are more useful than others. They each involve quite different factual circumstances as well as personal circumstances of the offenders, so the assistance is limited for those reasons.

78 In structuring the overall sentence I must, in accordance with what the High Court has said in Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 205 ALR 346, determine sentences that are appropriate for the individual offences and then consider questions of accumulation or concurrence in the light of the principle of totality. There is a measure of flexibility with which I can do this. In a case such as this where there are multiple complainants against whom multiple offences were committed it is appropriate to adopt a practical approach rather than one of rigid technicality. Mr McGrath has submitted on this topic as follows:

“The most obvious method of “grouping” the offences is by reference to offences committed against each victim. Concurrency, or part concurrency, could be ordered in respect of offences committed against a particular victim; that group of offences could then be partially accumulated on the group of offences in respect of the next victim. The principal of totality could be achieved by setting lower individual sentences or directing greater concurrence of sentences; a finding of special circumstances could achieve the appropriate proportion between effective non-parole period and head sentence relative to the sentencing pattern at the time of offending.”

79 I am going to partially adopt that submission. The most practical approach, it seems to me, is to order the sentences in relation to each victim be served concurrently and then to order partial accumulation upon sentences for offences in relation to other victims. Ordering a greater level of accumulation, which at least theoretically is justifiable, would result in a total sentence that would be beyond that which is appropriate to meet the totality of criminality. I will impose fixed term sentences where there is no utility in setting a non-parole period. In relation to count 19 the non-parole period I am going to set has been determined without regard to the length of the head sentence for that count but solely as to coincide with the date upon which the offender will become eligible for release on parole.

80 The offender has been in custody since the date of the jury’s verdict – 25 July 2008 - and so the first of the sentences should be backdated until then.

SENTENCES

81 For each of the offences for which the jury returned verdicts of guilty you are convicted.

82 In respect of counts 1 and 2 of indecently assaulting a male you are sentenced to imprisonment for a fixed term of two years commencing from 25 July 2008 and expiring on 24 July 2010.

83 For the offences in counts 3 and 4 of indecently assaulting a male you are sentenced to imprisonment for a fixed term of eighteen months commencing on 25 January 2010 and expiring on 24 July 2011.

84 For the offence in count 5 of committing an act of gross indecency with a male under eighteen and the offence in count 6 of committing an act of indecency towards a male under sixteen you are sentenced to imprisonment for a fixed term of nine months commencing 25 July 2011 and expiring on 24 April 2012.

85 For the offence in count 7 of homosexual intercourse by a teacher with a pupil under eighteen you are sentenced to imprisonment for a fixed term of five years and six months commencing on 25 January 2012 and expiring on 24 July 2017.

86 For the offence in count 8 of indecently assaulting a person under sixteen by a person in authority you are sentenced to imprisonment for a fixed term of two years commencing on 25 July 2013 and expiring on 24 July 2015.

87 For the offences in counts 9, 10 and 11 of homosexual intercourse by a teacher with a pupil under eighteen you are sentenced to imprisonment for a fixed term of five years and six months commencing on 25 July 2013 and expiring on 24 January 2019. There will be a non-parole period of four years and six months expiring on 24 January 2018.

88 For the offence in count 13 of indecently assaulting a person under sixteen by a person in authority you are sentenced to imprisonment for a fixed term of eighteen months commencing on 25 July 2016 and expiring on 24 January 2018.

89 For the offence in counts 14 and 15 of homosexual intercourse with a male under eighteen you are sentenced to imprisonment for four years commencing on 25 July 2016 and expiring on 24 July 2020. There will be a non-parole period of eighteen months expiring on 24 January 2018.

90 For the offence in count 16 of homosexual intercourse with a male under eighteen you are sentenced to imprisonment for seven years commencing on 25 July 2016 and expiring on 24 July 2023. There will be a non-parole period of eighteen months expiring on 24 January 2018.

91 For the offence in count 19 of indecently assaulting a person under sixteen by a person in authority you are sentenced to imprisonment for a fixed term of three years and six months commencing on 25 January 2015 and expiring on 24 July 2018. There will be a non-parole period of three years expiring on 24 January 2018.

92 For the offences in counts 18 and 20 of homosexual intercourse by a teacher with a pupil under eighteen you are sentenced to imprisonment for five years and six months commencing on 25 January 2015 and expiring on 24 July 2020. There will be a non-parole period of three years expiring on 24 January 2018.

93 You will be eligible for release on parole on the expiration of non-parole periods on 24 January 2018.

94 The total effective sentence I have imposed upon you is one of fifteen years with a non-parole component of nine and a half years.

95 I will just amend what I said earlier about the reasons for setting the non-parole period in relation to count 19 to indicate that that reason also applies in relation to the non-parole periods of counts 9, 10 and 11.

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