R v Rapson
[2013] VCC 1625
•17 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02129
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID RAPSON |
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JUDGE: | Her Honour Judge Gaynor | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 October 2013 | |
CASE MAY BE CITED AS: | R v Rapson | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1625 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | |
| For the Accused | Mr S. Ginsbourg |
HER HONOUR:
1 David Edward Rapson, a jury has found you guilty of nine charges of indecent assault and five charges of rape. The facts underlying your offending are as follows. They span two periods of time between 1973 and 1990. All complainants bar one were students at a particular Catholic boys' secondary school where they were both boarders or day students. Charges 1 to 5 cover the years 1973 to 1977; Charges 6 to 14 cover the years 1987 to 1990. In the intervening years you were not posted at that college.
2 The maximum penalty in relation to the offending insofar as Charges 1 to 4 are concerned, indecent assault with a male contrary to s.63(3A) of the Crimes Act, is five years. The maximum penalty on Charges 5, 6, 8 and 13, indecent assault contrary to s.44(1) of the Crimes Act is five years. Charges 7, 9, 10, 11 and 12, rape, the maximum penalty is ten years. The maximum penalty of course has been increased since, but that was the maximum penalty applicable at the time of this offending and applicable to you.
3 Complainant A met you when he was 11 or 12 and you 17 or 18 in your final years of school and a friend of his older sister. Charge occurred in 1975 or 76 when A was a day-school retreat at a Catholic college, where you were training to be a priest You invited A, who was then 13 or 14, into your bedroom, talked to him about sexual feelings, pulled out his penis and masturbated it and, at the same time, pulled out your own penis and masturbated that. Those actions comprise Charge 1, indecent assault of a male. Thereafter, all the complainants were student at the Catholic secondary boys college where you were eventually vice principal and where all the other offending occurred.
4 Charge 2, indecent assault on a male between January and June 1975 involved complainant B, a 12-year-old year 7 boarder. One morning boys in his dormitory were ordered out four at a time to a room at the end of the dormitory wearing only singlets and underpants for a so-called "medical examination". In the room were you and two other religious. The boys were ordered to look straight ahead, pull their underpants to their knees. You walked to B, grabbed his penis, held it up and fondled his testicles for about 60 seconds.
5 Charges 3 and 4, indecent assault on a male in 1977, involved C, a year 10 boarder at the school aged 15 or 16 who fell asleep on a school infirmary bed where he had been sent in the late afternoon after taking an antihistamine for a bee sting. He was woken by a group of students brought into the infirmary by you who then forced him to drink one or two mugs of Milo which you had prepared, which C found tasted strong and acrid, so he drank only part of one, hiding his mug. Lights were turned out and C fell asleep and awoke feeling groggy, hearing another boy in a bed crying out, "What are you doing?" while you stood over him, threatened him verbally and made him drink another Milo, after which the boy went quiet.
6 You then went around the beds where other boys slept, lifting blankets and making derogatory comments about their genitals. At C's bed you pulled back the blanket, fondled his testicles and anus under his pyjamas and squeezed his testicles and penis together hard saying words such as, "You're useless," presumably because C's penis did not become erect, then punched him in the stomach. According to C another priest came in as you were lifting blankets on the bed and told you that you must resist, you replying that God had made you that way.
7 Charge 5, indecent assault in 1987, involved D, a 14-year-old day-boy at the college who reported to your office one afternoon to hand in school work during a week's suspension from school. You invited him in to play a game on your computer, then leaned over him to open a draw containing lollies and cigarettes and money, asking if he liked anything there. D then stood up. You grabbed him on the testicles through his clothes. D told you to "fuck off", punched you and ran from the room.
8 Charge 6, indecent assault in 1987, occurred one night at the school in your bedroom where complainant E, aged 15 or 16, a year 10 boarder, habitually went to drink Scotch and smoke cigarettes with you at your invitation in your room after lights out. You were then the college deputy vice principal, who looked after the year 10 and 11 dormitory. That evening you and E drank most of a bottle of Scotch together, E becoming drunk and lying on your bed at your invitation. You then sat on the bed, rubbed his leg over his clothes, moving higher, eventually rubbing his penis over his jeans. E jumped out and ran out and avoided you thereafter.
9 Charge 7, rape in 1988, involved F, a 12-year-old year 7 boarder who went to your college to play games on your computer at about 10 pm one night at your invitation. After about 20 minutes you offered F a lemonade drink, which he drank straight down as he was thirsty. He then felt dizzy and fell asleep or became unconscious, waking in a foetal position on the floor by the desk, feeling pain in his anus and discovering you on top of him pushing your penis in and out of his bottom, but he could not move out from under you. He felt you ejaculate after about 10 seconds. You then climbed off and F ran straight from the office back to his dormitory where he lay crying. He was thereafter unable to defecate and the following weekend went home, was taken by his mother to the doctor for constipation and given suppositories.
10 Charge 8, indecent assault in 1989 or 90, involved G, a year 10 day student at the college whose father fell ill with cancer when he was in year 7. You were then vice principal and became friendly with G, whom you supervised in the school yard at recess. He thereafter enjoyed your company on a regular basis. You became aware of G's father's cancer when G was in year 8 and regularly called him into your office to talk about any problems he might be having. On two occasions in your office in 1989 when G was in year 9 aged 14 or 15 you gave him, as he sat in his chair, a glass of Scotch and then sat on his knees, facing him with your forearms resting on his shoulder, saying G could talk to you about anything.
11 In the 1989 to 1990 Christmas holidays G went to the school, upset about a fight over his father's drinking, to speak to you. You took him to your the bedroom and gave him two glasses of Scotch. As G sat on a single couch, drinking the second Scotch, you came over and squatted behind him, ran your hand up his leg, over his penis and scrotum over his jeans. These actions comprise the charge of indecent assault. In his first statement G said he jumped up and said he had to go. In the second statement made about three weeks later G said that in fact after reaching his groin you took off his jeans and underpants, told G to slide down in the chair, took him by the hips and turned him around so he was kneeling in front of the chair.
12 G then felt something pushed into his anus but he did not know what, but thought that because you did not take off your clothes it may have been your finger or fingers. G said he was too embarrassed and disgusted to tell police about this in his first statement. As G could not identify what penetrated his anus, this later incident was led as an uncharged act.
13 Charges 10, 11, 12 and 13 are charges of rape and Charge 14 a charge of indecent assault said to have occurred in 1990. The complainant in relation to these charges was H, who came to the college as a 16-year-old boarder in year 10, turning 17 in July that year. He had learning difficulties and dyslexia and was sent to the school to undertake an agricultural course it ran, his parents hoping eventually to set him up on a farm. One evening you told H to come to your office where you offered him a cigarette immediately he came in, and then a drink which H thought was whiskey.
14 You then talked to H about his learning difficulties and school work and suddenly told him to come and stand in front of a high-backed chair. You then pushed H's head down in the chair back, took off his pants and inserted your penis in his anus. He began crying from the pain and you told him to shut up and hit him on the back of the head, saying no-one could hear him and, after some time, withdrew your penis and walked H back to the dormitory. H went to the toilet, where he found blood in his jocks. These actions underlie Charge 10, rape.
15 One night soon after the Easter holidays you came into H's dormitory and ordered him back to the office. He began to cry as he knew what would happened. Immediately H was in the office you told him to go to the chair where you pulled down his pants and put your penis in his anus, comprising the actions underlying Charge 11, rape. The same incident happened in exactly the same way about a week later, Charge 12, rape, H crying on each occasion. Thereafter H said he hid from you whenever he saw you coming, including hiding in a cupboard.
16 H said that in July or August 1990 you came into his dormitory late one night and ordered him to your office, where you pushed H over the desk and then, as he lay there, tied his hands with a cord. You then pulled down H's pants and inserted your penis in his anus and were, according to H, extremely rough and hard. These actions comprise Charge 13, rape. While your penis was in H's anus you then leaned over and grabbed his testicle with your hands, squeezing and yanking them, causing H to cry out in agony. You then put a hankie in H's mouth, ejaculated, withdrew your penis and came to the side of the desk with your pants still down, slapping your penis against H's still-tied hands.
17 You then pulled the hanky from H's mouth and tried to insert your penis, but H kept his teeth clenched and you could only get your penis between his lips. These latter actions comprise Charge 14, indecent assault. You then stopped and untied H's hands, but had to physically help him back due to a walkway area where you left him. H was unable to walk next day due to pain in his testicles and was told to stay in bed in the dormitory, but ran out in the afternoon when you came in, crossing fields and swimming a river to the next property, where he was found that night and brought back and a doctor called. H's parents were not immediately informed of what happened by school authorities and was taken by them to see a doctor. But once his parents were informed they took him to their own specialist and on 31 August 1990 he underwent surgery for torsion of the right testicle.
18 I now turn to your personal circumstances. You are aged 60, the eldest of three children born to your mother. You never knew your biological father as your parents separated either before or soon after you were born. Your mother then married your stepfather, Ron Rapson, whose surname you bear, when you were 18 months old. He was your sole father figure. He and your mother went on to have two daughters, your younger sisters. Your counsel informed me your stepfather was a cruel and violent alcoholic who never accepted you and regularly beat you and your mother and the other children. Your earliest memory of him was being kicked by him when you were aged about four.
19 The family was impoverished, living in the outer suburb of Upwey in a house which was in disrepair and the children were not properly fed or clothed. Your father was the sole breadwinner and spent much of his earnings on drinking and gambling. You began running away from a very early age, to the point that you were physically restrained as a little boy, being tied to a clothesline and chicken wire being placed around the veranda. You continued to run away and eventually at the age of 12 began to regularly seek sanctuary at the home of two different men living in the area who sexually abused you in return for their protection over a number of years. One of those men was eventually gaoled for sexual crimes against children.
20 In your secondary years you were educated at St Joseph's College in Ferntree Gully from years 7 to 11 and completed year 12 at a Catholic college in Chadstone, joining that order as a brother on leaving school in 1973, undertaking three years of noviciate study at Auxilium College in Lysterfield, where the events comprising Charge 1 on the indictment occurred. You completed a diploma of education, were assigned to the Catholic College where your offending occurred in 1976, where you spent two years. In 1978 you were assigned to a Catholic school in New South Wales then in 1979 returned to study to complete your training for the priesthood, obtaining a bachelor in theology and being ordained in 1982.
21 You then spent three years teaching at a Catholic college in Tasmania, returning in 1986 to the college where the offending occurred as a religious coordinator. You then became the deputy principal there in 1988. You were transferred back to Auxilium College in 1992 due to allegations of sexual abuse which had been laid and for which you were imprisoned in November 1992 by a Magistrates' Court to a term of two years with a ten-month minimum for a number of indecent assaults involving another student at the same Catholic school.
22 X gave evidence on the trial before this court as a tendency witness. In his evidence X described being a 14-year-old boarder in year 9 in a dormitory of which you were a coordinator, sleeping at night in a small room off the dormitory. He began smoking your cigarettes with you in your bedroom, which progressed to him also drinking Scotch and Coke also supplied by you. X said you first sexually assaulted him one night as X went to leave the room after drinking and smoking, coming up behind him and performing oral sex upon him. This was X's first sexual experience. X said from that night on you sexually abused him every second or third night until he left the school the next year, either performing oral sex upon him or putting Vaseline on his penis and your own and lying on top of him, rubbing up and down until either of you ejaculated.
23 As part of your parole conditions you completed a psychosexual therapy unit course in June 1993. You were then dealt with in 1993 for other indecent assaults also committed by you on a student at the same college, the timing of those assaults being uncertain and - due to a very favourable report from the psychosexual unit, which was taken into account - received a 12-month sentence with two months to be immediately served so that your release date was then September 1993.
24 You were defrocked by the Catholic Church and excommunicated from your religious order in the meantime, but it appears that since your release from prison you have led a normal and crime-free life. You were employed by Mission Australia as a training and placement officer involved in training adult migrants in literacy and were promoted to manager of the central office. You then left and began a business recycling and buying linen from hotels, which you conducted for three to four years. You were then employed as a manager of a dental practice in Armidale in New South Wales, which position you held until the beginning of the committal proceedings in these matters in 2012. You have been in a committed homosexual relationship with your partner for the past ten years.
25 Your younger sister, who went to develop schizophrenia, died when she was 21; but you have remained close to your next elder sister and her husband, both of whom gave evidence on the plea. Your sister described your father's vicious and violent behaviour towards you, making the point that you grew to a stage where, in her view, you could have dealt with him violently but that you never did so and, when he died when you were about 33, you oversaw the funeral arrangements where you spoke warmly of him. She said you had a long-term and loving relationship with your partner, with whom you lived in Sydney. Your brother-in-law spoke in similar terms, stating that he had never known you to display any violence.
26 In a helpful plea your counsel conceded the aggravating features of your offending, that it involved the infliction of physical and emotional pain and injury; and comprised a grave breach of trust that involved procurement by enticement such as cigarettes, alcohol, computer games and cultivation of trust and friendship; as well as the use of power and coercion. He conceded the rapes were serious examples of this kind of crime.
27 He submitted that limiting the seriousness of this offending with the factors that you were youthful when you began offending, that the first of these offences occurred when you were aged only about 21, that the first five charges were committed when you were less than 25; and that this offending should be seen in the context of you, yourself, being a product of the education of the religious order you joined and you joining the order immediately after leaving school, taking a vow of chastity which was unrealistic for a sexually functioning person who had, however, been traumatised by physical and sexual abuse as a child and deprived of love.
28 He submitted that as a young gay man you had sexual feelings which were seen by the Catholic Church as evil and unnatural, that you were living in socially isolated conditions and settings and that you began as a junior religious at the Catholic college where it was clear older and more experienced priests were engaging in sexual abuse of the students there. Counsel submitted that whilst these matters could not be seen as an excuse, they were features to be taken into account.
29 You have some medical issues which are not serious, they being a stomach condition, high blood pressure, which is treated with medical, sleep apnoea and chronic sciatica due to disc problems in your back. He submitted that since 1993 you have undertaken substantial rehabilitation and are unlikely to re-offend so that specific deterrence was not an issue for the court in sentencing you. Additionally your previous offending dealt with in 1992 and 93 involved terms of imprisonment which would have otherwise resulted in some concurrency had all matters been heard together, which I accept must be taken into account either by moderating the length of individual sentences imposed in this case or by increasing the amount of concurrency. Further, you have no prior convictions.
30 You are currently being held in protective custody, which I accept is an onerous form of imprisonment, although on sentence you will doubtless be sent to a prison such as Ararat where there are like offenders and protective custody therefore less likely. It was not submitted that I should deal with you other than by the imposition of a prison sentence.
31 Certainly I accept that you had an extremely difficult and traumatic childhood involving physical and sexual abuse and your entry as a late-age teenager into a religious order and then assignment at a Catholic boarding school, which I accept harboured priests and brothers engaged in sexual abuse of their students, was a particularly unfortunate placement for you. However, your offending continued on over a number of years as you rose within the ranks of that order to eventually become deputy principal of that school. In that time you displayed entirely predatory behaviour involving misuse and abuse of your power as a religious and as a teacher in varying and callous ways. It was brazen, it was manipulative and it was heartless.
32
As early as 1997, and I here refer to the evidence of complainant C, you were undertaking wholesale drugging of a group of boys in order to subdue them. I am here referring to the preparation of Milo handed out to a group of boys bedded in the infirmary so that you could sexually maraud them. You exploited the situation complainant G found himself in, dealing with a father dying of cancer who had clearly developed an alcohol problem, who came to you for help. You committed an horrendous rape on complainant F, a
12-year-old in his first year of boarding school. You handed out alcohol and cigarettes to other boys as a precursor to sexually assaulting them.
33 The rapes committed on complainant H, at which time you were deputy principal of the school, were utterly cruel, sadistic and violent. You inflicted terrible pain upon your victim, not only raping him on four occasions, binding his hands on the last occasion as you did so and stuffing a handkerchief in his mouth, but added to the horror of the final rape by so mangling his testicles the boy could not walk and had to undergo corrective surgery. These were dreadful crimes against powerless and vulnerable victims who were entirely in your power as residents of the school and by virtue of the enormous authority and stature granted to Catholic priests by Catholic congregations and by parents who had unwittingly placed their sons in your entirely predatory hands.
34 Not every complainant in the trial chose to make a victim impact statement, but it was perfectly clear from the evidence of each during the trial of the amount of distress you had inflicted upon these victims. Those victim impact statements which were tendered made for deeply distressing reading. The mother of F, the 12-year-old boy you raped, wrote of her son's increasingly disturbed behaviour to the point where he was asked to leave the school; interruption to his education; his descent into years of drug use and development of accompanying psychological and psychiatric problems, the major life issues he deals with to this very day.
35
Equally heartbreaking were the victim impact statement of H and his mother. H wrote of growing up in a loving and caring family who did everything they could to assist him with his learning difficulties; of the excitement and expectation surrounding H's attendance at the agricultural course, which clearly he and his parents thought would be a perfect pathway into a
long-term future in agriculture; the utter destruction of those hopes; the years of drug use and criminal behaviour, entirely unexpected in a person who had been brought up in such a family, who never offended until finally leaving the school where he was treated by you with such sadistic cruelty; the years of drug use, the breakdowns, the family estrangements, the reconciliations, the further estrangements, the years of despair, of self-loathing, the psychological turmoil of depression, all of which remained unexplained until H finally revealed in 2012 his horrendous experience at your hands.
36 He felt great shame and wondered if he in fact had caused the assault upon him. He went on to develop aggression, drug and alcohol problems, essentially living for periods of time on the fringe of society engaging in self-destructive behaviour. Revelation of this offending to police in 2012, which was the first time he had ever spoken about it, has enabled him now, 25 years later, to engage in the psychological counselling he has required for so long. His experience in this respect is entirely consistent with many, many other victims of sexual assault seen by these courts over the years .
37 The late victim impact statement from complainant A spoke of the fact that over the years you were in fact a family friend, becoming in fact so friendly with the family that he was selected by you as his confirmation sponsor, which is a very honoured position in the Catholic religion, as you would well know. He stated that at the time that you abused him, he had no idea of what sex was, let alone between males of differing ages, particularly as sex education in the 70s was an entirely limited exercise compared with what is undertaken now. He stated that he had never even heard of this sort of thing, let alone a member of the clergy being involved, that it seemed surreal at first, then disgusting, then turned into a nightmare.
38 He said at 15 he began drinking and smoking, became promiscuous and then was introduced to marijuana at the age of 17, which he said he took to like "a duck to water", as he could for the first time sleep for more than three hours at night at a time, a sleep disturbance he had experienced since your assault upon him. He said that alcohol and drugs then followed as the only thing that could rid him of the daily memories of your assault upon him. He stated that since the late 1970s there has not been one single day go by that the things that you did to him have not entered his mind. He believes he has been an awful husband and a worse father. He believes that you have ruined his life. His aim is to rebuild it as successfully as he can.
39
You have shown not one shred of remorse. Each of your victims had to endure recitation of the crimes committed upon them and subsequent
cross-examination both at trial and in committal. In so doing, as I have said, each victim demonstrated significant distress. Many of them had kept secret your sexual offending for decades. As so many of them said, who could they tell? You were a priest, a teacher and your offending occurred at a time when the power of your position in both roles acted as an effective deterrent to exposure and enabled you to continue on regardless with your appalling behaviour. It is also my view that, notwithstanding your youth, you very soon became an enthusiastic member of the sexually deviant group of religious operating at the school at the time.
40 Ultimately the explanation proffered by your counsel as to your own deprived and loveless upbringing, the physical and sexual abuse you suffered, pales into insignificance in the face of your ruthless sexual exploitation of those boys charged to your care. You have ruined lives. Whilst your conviction for this most criminal offending may bring some comfort to your victims, it will by no means end the torturous paths your vile exploitation of them has set them upon. Whilst I accept many of the factors put on your behalf by your counsel in his most able plea, your unrelenting sexual exploitation of these boys was so predatory, so deliberate, so serious and represented such an incalculable breach of trust that, in my view, principles of just punishment, deterrence, condemnation and denunciation utterly dominate the sentencing exercise before me.
41 In particular I regard the rapes of which you were convicted as particularly serious examples of this sort of crime. In sentencing you I do take into account the mitigatory factors that I have set out at some length in my sentencing remarks. I therefore sentence you as follows. Could you stand up, please.
42 On Charge 1 you are sentenced to four months' imprisonment. On Charge 2 you are sentenced to four months' imprisonment. On Charge 3 you are sentenced to eight months' imprisonment. On Charge 4 you are sentenced to eight months' imprisonment. On Charge 5 you are sentenced to six months' imprisonment. On Charge 6 you are sentenced to six months' imprisonment. On Charge 7 you are sentenced to four years' imprisonment. On Charge 8 you are sentenced to 12 months' imprisonment. On Charge 9 you are sentenced to four years' imprisonment. On Charge 10 you are sentenced to four years' imprisonment. On Charge 11 you are sentenced to four years' imprisonment. On Charge 12 you are sentenced to six years' imprisonment. On Charge 13 you are sentenced to two years' imprisonment.
43 The base sentence will be the sentence imposed on Charge 12, six years imprisonment. I order that 18 months of each of the sentences imposed on Charges 7, 9, 10 and 11 be served cumulatively to the sentence imposed on Charge 12 and to each other and all other sentences. I further order that one month of the sentences imposed on Charges 1 and 2; two months of the sentences imposed on Charges 3, 5 and 6; four months of the sentence imposed on Charge 8 be served cumulatively to the sentence imposed on Charge 12 and all other sentences and to each other. This gives a total effective sentence of 13 years imprisonment. I order that you serve a minimum of ten years before becoming eligible for parole. Have a seat, please. You will be placed upon the Sex Offender's Register for life.
44 Pursuant to s.464ZF I declare that you must provide a forensic sample, which will be taken by saliva swab. I need to inform you that should you resist providing this sample, police may use reasonable force in obtaining. Would you take the prisoner down, please.
45 Yes, thank you. I forgot to declare pre-sentence detention.
46 MR CORDY: Yes.
47 HER HONOUR: What is that?
48 MR CORDY: It was 40 days as of the plea date, Your Honour. So that would be 48 not including today, Your Honour.
49 HER HONOUR: I declare that 48 days of this sentence have been served by way of pre-sentence detention.
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