R v Robert Flaherty - [2016] NSWDC 124

District Court

New South Wales

Medium Neutral Citation: R v Robert Flaherty [2016] NSWDC 124
Hearing dates: 19, 25 February 2016
Date of orders: 25 February 2016
Decision date: 25 February 2016
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
1. The offender is sentenced to an aggregate term of imprisonment of 2 years, 3 weeks to commence on 26 February 2016 and expiring on 18 March 2018 with a non-parole period of 6 months.
2. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the offender’s release on parole on 25 August 2016.
3. The offender is convicted and is directed to enter into a good behaviour bond for 1 year pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 25 February 2016 and accept the following conditions:
a. The offender must be of good behaviour and appear before the court during the bond term if required.
b. Notify the Registrar of the District Court of any change in his address and attend court if he receives notice to do so.
4. Adjourned to 26 February 2016 at 2pm for bail hearing.

Catchwords: CRIMINAL LAW – particular offences – offences against the person – sexual offences – historical – 1970s and 1980s - sentence – particular cases – indecent assault and related offences – offender parish priest – victims teenage parishioners – sexual acts more serious crimes these days – sentencing principles for historical crimes – elderly offender in very poor health – whether to impose full-time custodial sentence – short life expectancy – whether an effective life sentence – aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Barton v R [2009] NSWCCA 164
Magnuson v The Queen [2013] NSWCCA 50
Pfeiffer v R [2009] NSWCCA 145
R v Mammone [2006] NSWCCA 138
R v Moon [2000] NSWCCA 534; 117 A Crim R 497
R v Sopher (1993) 70 A Crim R 570
Ryan v The Queen [2001] HCA 21; 206 CLR 267
Category: Sentence
Parties: Regina (Crown)
Robert Flaherty (Offender)
Representation:
Counsel:
Ms L Rowan (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Benetatos White (Offender)

File Number(s): 2013/201461
Publication restriction: Statutory non-publication of names of victims

Judgment

STATUTORY NON-PUBLICATION OF NAMES OF VICTIMS

I am sentencing a man for sexual assaults he committed against young boys 30 to 45 years ago. The man was then a parish priest and the boys were parishioners. The man is now 72 and in very poor health. So the sentencing must take account of the importance of punishing the man for serious offending in breach of trust and the significance as a mitigating factor of his age and ill health.
The man’s name is Robert Flaherty. What I should say first are the offences that I am sentencing him for. There are five altogether. They are all offences against s81 of the Crimes Act 1900. Each of them carries a maximum of five…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Robert Flaherty

Details

AGLC: R v Robert Flaherty [2016] NSWDC 124
Case: [2016] NSWDC 124
Decision Date: 25 February 2016

CaseChat Overview and Summary

The case of R v Robert Flaherty involved the defendant, a former parish priest, who was convicted of indecent assault and related offences against teenage parishioners during the 1970s and 1980s. The matter was heard in the District Court of New South Wales. The court was required to determine the appropriate sentence for these historical crimes, taking into account the defendant's age, health, and the societal context of the offences.

The central legal issue was whether to impose a full-time custodial sentence on the elderly offender, who was in very poor health and had a short life expectancy. The court also had to consider if the sentence would effectively act as a life sentence given the defendant's health and age. The sentencing principles for historical crimes were discussed, with a focus on balancing the need for punishment and deterrence with the realities of the defendant's current condition.

In delivering the judgment, the court recognised the seriousness of the offences but also took into account the defendant's advanced age and poor health. The court concluded that an aggregate term of imprisonment of two years and three weeks was appropriate, with a non-parole period of six months. The defendant was also ordered to be released on parole on a specified date and to enter into a good behaviour bond for one year with certain conditions. This decision balanced the need for accountability and deterrence with the practical considerations of the defendant's health and life expectancy.

The final orders included a specific sentence, a direction for release on parole, and conditions for a good behaviour bond, all of which were to commence on specified dates. The case concluded with an adjournment for a bail hearing.

Orders

Orders of the court

1. The offender is sentenced to an aggregate term of imprisonment of 2 years, 3 weeks to commence on 26 February 2016 and expiring on 18 March 2018 with a non-parole period of 6 months.

2. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the offender’s release on parole on 25 August 2016.

3. The offender is convicted and is directed to enter into a good behaviour bond for 1 year pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 25 February 2016 and accept the following conditions:

a. The offender must be of good behaviour and appear before the court during the bond term if required.

b. Notify the Registrar of the District Court of any change in his address and attend court if he receives notice to do so.

4. Adjourned to 26 February 2016 at 2pm for bail hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Robert Flaherty [2016] NSWDC 124
Hearing dates:	19, 25 February 2016
Date of orders:	25 February 2016
Decision date:	25 February 2016
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	1. The offender is sentenced to an aggregate term of imprisonment of 2 years, 3 weeks to commence on 26 February 2016 and expiring on 18 March 2018 with a non-parole period of 6 months. 2. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the offender’s release on parole on 25 August 2016. 3. The offender is convicted and is directed to enter into a good behaviour bond for 1 year pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 25 February 2016 and accept the following conditions: a. The offender must be of good behaviour and appear before the court during the bond term if required. b. Notify the Registrar of the District Court of any change in his address and attend court if he receives notice to do so. 4. Adjourned to 26 February 2016 at 2pm for bail hearing.
Catchwords:	CRIMINAL LAW – particular offences – offences against the person – sexual offences – historical – 1970s and 1980s - sentence – particular cases – indecent assault and related offences – offender parish priest – victims teenage parishioners – sexual acts more serious crimes these days – sentencing principles for historical crimes – elderly offender in very poor health – whether to impose full-time custodial sentence – short life expectancy – whether an effective life sentence – aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Barton v R [2009] NSWCCA 164 Magnuson v The Queen [2013] NSWCCA 50 Pfeiffer v R [2009] NSWCCA 145 R v Mammone [2006] NSWCCA 138 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 R v Sopher (1993) 70 A Crim R 570 Ryan v The Queen [2001] HCA 21; 206 CLR 267
Category:	Sentence
Parties:	Regina (Crown) Robert Flaherty (Offender)
Representation:	Counsel: Ms L Rowan (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Benetatos White (Offender)
File Number(s):	2013/201461
Publication restriction:	Statutory non-publication of names of victims