R v Pemble

[2015] NSWDC 168

District Court

New South Wales

Medium Neutral Citation:	R v Pemble [2015] NSWDC 168
Hearing dates:	23 July 2015
Date of orders:	23 July 2015
Decision date:	23 July 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.
Catchwords:	CRIMINAL LAW- Sentence – Form 1 - Historical sexual assault - Sentencing as per existing tariff - Indecent assault - Significant consequences for victim
Legislation Cited:	Crimes Act
Category:	Sentence
Parties:	The Crown Peter William Pendle
Representation:	Solicitors: Director of Public Prosecutions Greg Walsh and Co - Offender
File Number(s):	2014/238932
Publication restriction:	There is to be no publication of the name of the complainant or any material which may tend to identify the complainant

SENTENCE

1. HIS HONOUR: Very belatedly, sentencing judges have realised the true harm that sexual assault causes to the victims of such offences. Such harm is often significant and long-lasting. It is only in more recent times that the courts have begun to impose sentences which reflect that harm.

2. In 1972 when the offender committed his offences the courts had an approach to sentencing offenders such as the present which we now know to be wrong. Sentences imposed at that time did not adequately reflect the consequences which flowed from conduct such as I will shortly describe. In 1972 sentences for this type of offence were far more lenient than sentences for similar conduct now.

3. The law requires that I choose a sentence in this case which reflects the earlier, now discredited, approach. I must try to assess what the offender would have got had he been sentenced soon after he committed his offences, and impose that sentence. I have spoken elsewhere about my disagreement with that approach. To sentence the offender according to standards which existed in the early 1970’s is to perpetuate the errors that were made by sentencing courts at that time. Surely it would be better for the courts when sentencing for offences committed in the 1970’s, to be right some of the time than wrong all of the time. Offenders such as Mr Pemble benefit from earlier mistakes made by sentencing courts, even where we now know that those earlier decisions were wrong.

4. As will be obvious, I do not agree with the present state of sentencing law so I should make it abundantly clear that I recognise that my views must be put aside. I am entitled to suggest that the law is wrong and that it should be changed. I am not entitled to ignore it. Accordingly, I will sentence the offender as though he was dealt with at the time of or soon after his offending conduct.

5. He has pleaded guilty to one count of indecent assault on a male pursuant to s 81 of the Crimes Act. That offence, now repealed, carries a maximum penalty of five years’ imprisonment. When I sentence him for that matter he asks that I take into account two other matters, also offences against s 81, on a Form 1.

6. The facts of those three offences are as follows. The offender began as a Marist brother in 1967. The complainant in this matter C grew up in the Rutherford area with his parents and siblings. The family were devout Catholics who would attend mass each Sunday in Rutherford. C went to St Paul’s Catholic Primary School at Rutherford where, in later years there, he commenced duties as an altar server. At the age of 12 he moved to Marist Brothers High School at Maitland where the accused was a teacher. Towards the end of the school year in 1971 the offender selected C as a personal assistant of sorts to help him with preparations for school sports activities, such as carnivals, and at times in performance of that function C would be taken out of lessons.

7. The first offence which I am about to describe appears on the Form 1. It was during a school day in early 1972 that the offender took C to the sports room. Once inside the offender closed and secured the double doors. It was then that the offender pushed C up against a wall, placed the front of his own body against C’s and commenced grinding his pelvis against him. The offender had an erection and he rubbed his erection up and down the front of C’s body while nuzzling and kissing his neck. This lasted about five minutes. They then left the room without anything being said.

8. The next offence also appears on the Form 1. This also occurred at the beginning of 1972. C recalls the offender asking to meet him outside the sports room. The offender opened the doors, they went inside and once again the offender shut and locked the door. Similar activities then occurred. The offender pushed C up against the wall and pinned him there with the front of his body. C could feel the accused’s erect penis at the front of his body whilst the offender nuzzled and kissed the side of C’s neck, grinding his erection against him as he did so.

9. Then the offence for which the offender must be specifically sentenced occurred. It was the offender who suggested to C that they take their clothes off. They did so. They then went up the ladder going to the mezzanine level where the gym mats were kept. The offender went up first and the complainant followed him. The offender hauled C up so that the front of C’s naked body slid along the front of the offender’s naked body. At this time the offender had an erection. C recalls the accused’s erect penis coming into contact with his upper chest then the rest of the front of his body, as we was slid along. He ended up lying on top of the offender. The offender began nuzzling and kissing his neck and was moving C slightly so that there was friction between their bodies. This continued for about five minutes until the offender ejaculated. C did not know what had happened. He asked “What’s that?” In an annoyed tone the offender replied “You know what it is”. C repeated that he did not and the offender repeated “You know what it is”. C became scared. They both climbed down the ladder and dressed and left the sports room.

10. These events went unnoticed by the authorities for many years. C felt shame and disgust for many years and it began to affect his marriage. Those feelings worsened when publicity began to be given to offending of various paedophiles in the Catholic Church. In February 2013 he disclosed the offending to his wife and the authorities were subsequently notified.

11. The offender has disclosed other sexual offending against two other boys which occurred around the same time. He is not to be sentenced for those offences because he has not been charged with them, but he is not entitled to say that his misconduct was isolated in the sense that he only indecently assaulted a single victim, C.

12. C read a victim impact statement to the court. It speaks eloquently of the consequences for him of the offender’s misconduct. Not surprisingly, after these offences occurred, his attitude towards school changed considerably. He previously had been a happy participant in school sports and his parents were often praised about his respectful, polite and well-behaved manner, but after he was abused by the offender he became anxious and fearful at school. He was constantly afraid that people would find out what had occurred. He withdrew, became a consistent truant and his grades plummeted. Swimming pool change rooms and the possibility of being near others possibly naked, frightened him to the point that he was physically ill. He rarely completed homework and was caned. He failed his School Certificate in 1974 and much to his horror it was suggested that he repeat fourth form. He refused. Fortunately he was then enrolled in a co-ed school away from Maitland where he enjoyed school and made many friends. He felt less threatened although he never went near a sporting event.

13. Matters came flooding back to him as there was consistent news reporting of abuse by clergy. Those friends he had who knew that he attended Marist Brothers mentioned the subject and he became uncomfortable each time they did. He once again felt himself descending into the schoolboy who avoided personal contact and conversation as a protection mechanism.

14. Even though the offences occurred many years before, his marriage began to be affected. He describes shutting down and becoming more and more distant. Those consequences were entirely foreseeable. It is entirely foreseeable that, as a child, C would be affected the way he described and equally foreseeable that those consequences would continue for many, many years after the offence was committed.

15. The offender is now 67 years of age. He grew up in a happy home. He went to teacher’s college in 1969 and formed a close relationship with a young woman. This confused him because he had decided to enter the Marist Brothers order. He considered leaving the order but instead he was taken out of teacher’s college and sent to teach in a high school. He was, as he told the author of a pre-sentence report, just a kid himself at the time. He was not a fully mature adult when he began teaching at a high school where there were children of C’s age around him.

16. Since committing the offences that I have described, he has committed no other offences. He went on to have a distinguished career as a teacher and headmaster although he has now retired and has been studying and working in Belgium.

17. Of course one of the important circumstances I have to consider in determining the appropriate sentence concerns the objective gravity of the offender’s misconduct. The criminal law attempts to break down criminal behaviour into various categories, as it tries to work out the objective gravity of particular offending. In cases of this kind courts often refer to questions such as “Was there skin to skin contact”, “Was clothing removed?”, “Did a male offender ejaculate?” “Did the offender hold a position of trust?” Of course, often the effects of an offence upon a victim of it do not depend on the answers to such questions and such attempts at categorisation are often meaningless to many. Considerable harm can be caused from conduct which the criminal law regards as relatively innocuous. However considerations such as these do not arise in the present case because the answers to such questions reveal a significant degree of objective gravity: thus there was a great deal of skin to skin contact; the offender and his victim were naked; the offender did ejaculate onto the victim’s body; the offender held a considerable position of trust over C, not only because he was a teacher but also because of his position in the Catholic Church. And then there is also the age of the complainant. He was but 13, while offences under s 81 are not specific to assaults upon children. Finally, as Mr Walsh quite properly conceded, C was vulnerable, so objectively this is a serious example of an offence against s 81.

18. Quite rightfully the offender has expressed his deep remorse for his actions. I find those expressions of remorse to be genuine. In particular I note that he disclosed uncharged acts and that he pleaded guilty to this offence. It is notorious that it is difficult to prove old offences of child sexual assault where, as is almost invariably the case, there is no witness to what occurred. Thus, had the offender wished to tough it out and plead not guilty, the chances of him being found guilty were probably not all that high. The fact that he has pleaded guilty in those circumstances is a reason that I accept that he is remorseful for what he has done.

19. He also wrote an eloquent letter of apology which was tendered on his behalf. I am satisfied that the sentiments that he expressed in that letter of apology are genuine and are very much to his credit. Since I have mentioned his plea of guilty I should say that it has a utilitarian benefit to the criminal justice system and so the sentence that I impose upon him will be 25% less than it would otherwise have been.

20. The offender is entitled to have me take into account his otherwise good character. Many testimonials were tendered and they all speak of the good work done by the offender in the past 35 years as a teacher, headmaster, counsellor and friend. There is much that he has done of which he is entitled to be proud and these offences seem to have been isolated, committed at a time when the offender himself was quite young and unprepared for the sexual challenges which life presents, particularly life as a Marist Brother. They represent a single period of misconduct which has not been repeated and his prospects of rehabilitation are thus good.

21. I take into account the delay which has occurred since the offences were committed. Consistent with his remorse it could not be said that he has gone through life untroubled by what he has done. Many offenders do. Many offenders carry on as though they have done nothing wrong at all without fearing the knock on the door which would reveal them to have committed offences many years ago. But that is not this case. The offender even admitted his misconduct in counselling sessions in 1985 and again in 1988. People other than me will no doubt comment on the circumstance that those to whom he admitted his misconduct apparently did nothing about it.

22. I have returned to where I have started, the idea of sentencing someone in 2015 for an offence committed in the early 1970’s. Both the Crown and Mr Walsh provided me with cases, reports and statistics dealing with sentences for breaches of s 81 in the early 70’s. They have all been very helpful. I mention one report in particular, that done by Mr Ivan Potas. He refers to statistics which demonstrated that in 1975 a recognisance to be of good behaviour was imposed in about two-thirds of cases and a sentence of imprisonment in only about a quarter of cases. But, as I have already mentioned, it must be remembered that s 81 covered assaults against adult males as well as children and there was no need for there to be any breach of trust involved. So when those statistics are considered, it must be remembered that the objective gravity of the conduct for which this offender is to be sentenced was much more significant than many, if not most, offences which would have been covered by s 81.

23. Mr Walsh asks me to find that the offender will do his time in custody harder than the general prison population. I accept that. There is a risk that the offender will serve his sentence in protection and if he does, there is a further risk that this will involve harsher conditions of custody than would otherwise be the case. Then there is the offender’s age. Prison is a nasty place at the best of times. It is a place for young men, not for 67 year olds with no other criminal history.

24. Then there is the offender’s medical condition. He has had a considerable number of hip replacements and knee replacements and finds it difficult to walk. He suffers from a number of conditions which are referred to in medical reports and sending him into custody now would risk possible postponement of treatment planned for August. On the other hand, there is nothing to suggest that he will not receive proper treatment in custody or that postponement of treatment would be of much significance.

25. Mr Walsh concedes that a fulltime custodial sentence is within the range in the present case. He submits further however that so is a suspended sentence of imprisonment and impresses upon me that that is the appropriate sentence. However, in the particular circumstances of this case, I do not regard a suspended sentence as sufficient punishment or denunciation of the offender’s misconduct. In making this assessment, of course I have had regard to the matters on the Form 1. Denunciation is very important. After all, protection of innocent children such as C was, is crucially important in selecting the appropriate sentence to impose. A fulltime custodial sentence is very much a sentence of last resort but that is what is required.

26. There are special circumstances in this case. They arise primarily from the fact that in 1972 non-parole periods were usually much less than 75% of the head sentence. I therefore impose sentence as follows.

27. The offender is sentenced to imprisonment. I set a non-parole period of nine months and a head sentence of 18 months to date from today 23 July 2015. The non-parole period will thus expire on 22 April 2016 on which day the offender is to be released to parole.

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Decision last updated: 17 August 2015