R v Wade

Case •

[2020] NSWDC 573

•

30 September 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Wade [2020] NSWDC 573
Hearing dates: 24 July 2020; 30 September 2020
Date of orders: 30 September 2020
Decision date: 30 September 2020
Jurisdiction:Criminal
Before: Adams QC ADCJ
Decision:

Full-time imprisonment to be served by way of Intensive Corrections Order

Catchwords:

CRIME – conceal serious indictable offence

Legislation Cited:

Crimes Act (NSW)1900

Crimes Sentencing Procedure Act

Category:Sentence
Parties: Office of the Director of Public Prosecutions (Crown)
William Wade (Offender)
Representation:

Counsel:
A Terracini (Crown)
G Brady SC (Offender)

Solicitors:
Office of the Director of Public Prosecutions
Streeton Lawyers
File Number(s): 2017/00047331
Publication restriction: No publication of Complainant’s names

Judgment

Introduction

  1. William Wade comes before the Court for sentence having pleaded guilty to the following offences on indictment (omitting the names of the victims for reasons of privacy) –

  1. between 7 April 2014 and 26 August 2014, at Randwick in the State of New South Wales, he did fail without reasonable excuse to bring information to the attention of a member of the Police Force or other appropriate authority, knowing that a serious offence had been committed, namely the indecent assault of [a then student] by Francis Cable (also known as Brother Romuald) and that he, the said William Wade, had information which might be of material assistance in securing the prosecution of the said Francis Cable; and

  2. between 7 April 2014 and 13 September 2014, at Randwick in the State of New South Wales, he did fail without reasonable excuse to bring information to the attention of a member of the Police Force or other appropriate authority, knowing that a serious offence had been committed, namely, the indecent assault of [a then student] by D’Arcy O’Sullivan (also known as Brother Dominic) and that he, the said William Wade had information which might be of material assistance in securing the prosecution of the said D’Arcy O’Sullivan.

  1. The offender seeks, in respect of the first charge, to have taken into account on a Form 1 the following additional offences –

  1. between 7 April 2014 and 26 August 2014, at Randwick in the State of New South Wales, he did fail without reasonable excuse to bring information to the attention of a member of the Police Force or other appropriate authority, knowing that a serious offence had been committed, namely, the indecent assault of [a then student] by Francis Cable (also known as Brother Romuald) and that he, the said William Wade, had information which might be of material assistance in securing the prosecution of the said Francis Cable;

  2. between 7 April 2014 and 26 August 2014, at Randwick in the State of New South Wales, he did fail without reasonable excuse to bring information to the attention of a member of the Police Force or other appropriate authority, knowing that a serious offence had been committed, namely the indecent assault of [a then student] by Francis Cable (also known as Brother Romuald) and that he, the said William Wade, had information which might be of material assistance in securing the prosecution of the said Francis Cable; and

  3. between 7 April 2014 and 26 August 2014, at Randwick in the State of New South Wales, he did fail without reasonable excuse to bring information to the attention of a member of the Police Force or other appropriate authority, knowing that a serious offence had been committed, namely the indecent assault of [a then student] by Francis Cable (also known as Brother Romuald) and that he, the said William Wade, had information which might be of material assistance in securing the prosecution of the said Francis Cable.

  1. The offender further seeks, in respect of the second charge, to have taken into account on a Form 1 the following additional offences –

  1. between 7 April 2014 and 13 September 2014, at Randwick in the State of New South Wales, he did fail without reasonable excuse to bring information to the attention of a member of the Police Force or other appropriate authority, knowing that a serious offence had been committed, namely the indecent assault of [a then student] by D’Arcy O’Sullivan (also known as Brother Dominic) and that he, the said William Wade, had information which might be of material assistance in securing the prosecution of the said D’Arcy O’Sullivan; and

  2. between 7 April 2014 and 13 September 2014, at Randwick in the State of New South Wales, he did fail without reasonable excuse to bring information to the attention of a member of the Police Force or other appropriate authority, knowing that a serious offence had been committed, namely the indecent assault of [a then student] by D’Arcy O’Sullivan (also known as Brother Dominic) and that he, the said William Wade, had information which might be of material assistance in securing the prosecution of the said D’Arcy O’Sullivan.

  1. The substantive offences and the Form 1 offences are contrary to s 316(1) of the Crimes Act 1900 and carry a maximum term of imprisonment of two years. In the circumstances, it seems to me that it is appropriate to take the Form 1 offences into account as requested by the offender.

Facts

  1. A statement of agreed facts was tendered in the proceedings from which the following account is drawn. The offender, now aged something over 84 years, is a Catholic Marist Brother, having joined the Order in July 1955. He was attached to the Marist Brothers school at Hamilton between 1 January 1969 and 31 December 1976. From January 1969 he was deputy principal, from April 1970 acting principal and in January 1979 was appointed principal.

  2. Whilst the offender was principal of the school, two Marist Brothers attached to the school as teachers, Francis Cable and D’Arcy O’Sullivan (“the Brothers”) sexually abused students at the school. It is not alleged that the offender had any personal knowledge of this criminal conduct. However, on a number of occasions, complaints about the brothers’ conduct were made by students to the offender. (I will deal with the details in due course.) Although this was in general terms and lacking detail, the offender was duty bound to investigate the complaints and report them at least to his superiors and, depending on the details he obtained, to police. This was not only a moral responsibility to the students, since he was charged with their care, but a responsibility also to his employer.

  3. At the time of the complaints, the only offence for which the offender might have been liable for his inaction was the common law misdemeanour of misprision of felony, which consisted of knowing that a felony had been committed, and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time. Leaving aside the fact that, at the time, the sexual misconduct that was complained of did not amount, in law, to a felony, is no basis for inferring that, from what he was told, the offender knew, as distinct from suspected that the Brothers had committed any serious offences, nor is any such allegation made by the prosecution. Accordingly, so far as the evidence goes, he committed no criminal offence because of his silence when the complaints were originally made to him. It necessarily follows that he is not liable to punishment for what he failed to do at that time, since he had committed no crime.

  4. As is later discussed, the charges against him for which he is now to be sentenced do not allege that he had committed any offence by not informing police of the students’ complaints at the time they were made but in not informing police between April and September 2014. This is of vital, indeed, crucial, importance in determining the appropriate outcome of these proceedings.

  5. In 1990, the Crimes Act 1900 was amended by the insertion of s 316, which is to the following effect –

(1) An adult –

(a) who knows or believes that a serious indictable offence has been committed by another person, and

(b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority,

is guilty of an offence.

  1. The offence in question needs no longer be a felony and it is sufficient if the person believes the offence has been committed, even if they do not know that it has, that will constitute the offence if the other conditions of the section are satisfied. Mere suspicion, however well founded, is still not sufficient to constitute the offence. Thus, a complaint might lead to a suspicion but it is only if it is believed that (other conditions being satisfied) an offence is committed by not reporting the belief to police. In this case there is no evidence that, prior to the dates specified in the charges, the offender believed (as distinct from suspected) that the Brothers had committed any indecent assaults and it is no part of the prosecution case that he did have any such belief before the dates specified in the charges. In short, it is not alleged and there is no evidence that proves that, prior to the dates specified in the charges, the offender believed the truth of the complaints that had been made to him.

  2. The only evidence that the offender had the requisite knowledge or belief comes from his own pleas of guilty to the charges and those admissions involve only knowledge or belief on and from the specified dates in 2014. The objective seriousness of the offender’s failure to report must be assessed as at those dates, not at the time when s 316 was inserted in the Crimes Act, let alone when complaints were first made to him. Putting this in another way, the offender must be sentenced on the basis of his criminality as at the dates particularised in the charges and not on the basis that he was culpable at an earlier time, however immoral and irresponsible he then was.

  3. (I note also that there is no material before me which explains the particularised dates, in particular how it was that at that time he was possessed of the requisite knowledge or belief. Obviously, this is not a matter about which it is appropriate to speculate.)

  4. One of the most important considerations relevant to the assessment of objective seriousness of the failure to provide the believed information is the significance of its non-disclosure at the particular time alleged in the charge in terms of delaying or in some way impeding “the apprehension of the offender or the prosecution or conviction of the offender for that offence”. This requires consideration of the extent to which the information is material to the investigation of the concealed offence or to its proof. In addition, it will be important to weigh the possibility that non-disclosure has exposed other potential victims to harm. It is obvious that, had the offender done his duty by the students for whom he was responsible at the time they made their complaints, the further sexual abuse of them and other victims may well have been prevented. His inaction and silence thus contributed to terrible consequences. However, it must be emphasised that he cannot now be punished for what he omitted to do at that time.

  5. Enough has been said about, and it is not the role of the Court to reprise, the various institutional failures that have attended the sexual abuse of children and the contribution to those failures by persons in responsible positions, such as the offender, who grossly failed in their moral duty. The Court can deal only with the particular offences with which the offender has been charged.

The non-disclosed information

  1. (In order to preserve the privacy of the victims, I will simply refer to them numerically by reference to the paragraph number in the agreed statement of facts which has been exhibited in the proceedings that describes their complaints.)

  2. I deal first with the students assaulted by O’Sullivan.

  3. Student 6 attended Marist Brothers Hamilton between 1969 (Year 7) to 1972 (Year 10). During his four years at the school, student 6 was sexually assaulted on a number of occasions by Brother Patrick, a teacher at the school. He was aware that other students were also being sexually assaulted and harassed by O’Sullivan and Cable. Towards the end of 1972 he refused to return to the school and his parents transferred him to another school to complete Years 11 and 12. During the school holidays of 1972, student 6 and a friend ignited fireworks in the schoolyard as a prank and were caught by the offender who required him to meet him at the school the following day. The offender reprimanded the student for his actions. Student 6 then told him, in substance, “How do you justify what Brother Patrick, Brother Romuald and Brother Dominic are doing molesting kids? How do you justify it? This is a Catholic school.” The offender responded by saying that all three Brothers were “good and competent teachers”. He did not disclose, between 7 April 2014 and 13 September 2014, what the student had told him to a member of the police force or other or far appropriate authority at any time. This constitutes the additional offence (i) concerning O’Sullivan to be taken into account on count 2 of the indictment.

  4. Student 10 attended the school between 1972 (Year 7) and 1975 (Year 10). O’Sullivan was attached to the school as a teacher and resided with the offender. In 1973, whilst in Year eight at age 13 to 14 years, O’Sullivan was the Form Master for his year. On one occasion, he was sent to O’Sullivan’s office in relation to his behaviour, and was indecently assaulted him by O’Sullivan, who placed his hand up the leg of the student’s shorts. The student immediately became upset and shocked and ran from the room to the office of the offender, who was seated at his desk. He told the offender, “Brother Dominic put his hands in my pants and I want you to ring my mum straight away. And if you don’t ring my mum, I’m going to ring the coppers”. The offender required student to leave his office and then contacted the student’s mother. Shortly after, she arrived at the school and the student told her of the indecent assault. She was “furious”, went to the offender’s office and had a conversation with him behind closed doors. Shortly after, she came out of the office and took the student home for the rest of the day. She told him that “from now on I was allowed to wear long pants”. He did so. From that day, O’Sullivan tended to avoid the student and did not assault him again. The offender did not disclose, between 7 April 2014 and 13 September 2014, what the student had told him to a member of the police force or other appropriate authority. This constitutes the offence in count 2 of the indictment.

  5. Student 15 attended the school between 1971 in 1974. Sullivan was a teacher at the school. In 1973, when the student was in third form, O’Sullivan was his Technical Drawing teacher. During class, he would come to the student and other boys and rub his hands up and down their thighs, sometimes around their waists. He would also rub boys around the shoulders and pat them on the head. The first time O’Sullivan touched the student occurred in the first few weeks of the class. He put his arm around him and praised his work. This occurred frequently and gradually escalated to putting his hand around the student’s shoulder and making his way down to rub the inside of his thigh. Once, O’Sullivan came up behind the student, put his arm around his waist and pulled him in towards him to give him a hug. On another occasion, O’Sullivan put his arm around the student’s shoulder and his other arm on his right thigh, rubbing his inner thigh up and down above the shorts for about 30 to 40 seconds. This happened at least two times a month from the second term for the rest of third form. Later in the year, O’Sullivan came up behind the student and put his right hand between the front buttons of his school shirt, rubbing his bare chest with his fingers through the buttons. By halfway through the second term of fourth form, in 1974 the student got sick of O’Sullivan’s touching him and the other boys in class and decided to speak to the offender, then the school principal, about it. He saw the offender walking from his office towards the playground and approached him. He told him that he wanted to speak to him about “Brother Dominic”. The offender said, “Can we talk about it later?” The student agreed and went back to class. Later, another student came to get student 15 out of class to go to see the offender. He went to his office and the offender closed the door. He asked, “What do you want to speak to me about Brother Dominic?” The student said, “Brother Dominic has been touching some of the kids in class, including me, and we don’t like it”. The offender said, “I will look after it”. He asked him nothing further. The student felt assured that O’Sullivan’s behaviour would stop after this but it did not. He did not tell anyone else that he’d been to see the offender. The offender did not, between 7 April 2014 and 13 September 2014, disclose what the student told him to a member of the police force or other appropriate authority. This constitutes the additional offence (ii) concerning O’Sullivan to be taken into account on count 2 of the indictment.

  6. The complaints about Cable’s conduct are as follows.

  7. Student 36 attended the school between 1973 (Year 7) and 1978 (Year 12). Cable was this student’s religious teacher and was also involved in school sporting and social activities which the student attended. In particular, Cable ran the Duke of Edinburgh Award Scheme in which the student was involved. During the running of the scheme, during a trip to Bulahdelah, Cable placed his hand on the student’s genitals and fondled them whilst talking about pubic hair and circumcision. On another occasion the student attended swimming baths in in the company of other students and cable for the purpose of completing his Bronze Medallion. This took place over a three month period. Cable indecently assaulted the student on about seven occasions by rubbing his erect penis up against the students back whilst in the water. On one occasion in 1974, Cable made the student stand naked in the change room in front of the other students whilst Cable indicated the whereabouts of the “femoral artery” and the difference between circumcised and uncircumcised penises. At the time, he fondled the student’s genitals under the guise of his explanations. As a result of this assault, the student (then 12 to 13 years of age) became upset when he returned home and told his parents about Cable’s assaults. The student and his father (now deceased) met with the offender during school hours at the school and the student told the offender about Cable’s conduct. The student’s father said to the offender, “something has to be done” so that this did not happen again. The offender responded, “Thank you for being honest. You’ve done the right thing. Don’t tell anybody. So you are not telling a fib, pay a visit to the library and tell everyone that you’re at the library”. The student and his father then left. The offender did not, between 7 April 2014 and 26 August 2014, disclose what the student told him to a member of the police force or other appropriate authority. These are the facts constituting count 1 of the indictment.

  8. Student 43 commenced school at Marist Brothers Hamilton in 1973. In 1974 Cable was his class master. In 1974 the student saw Cable, at life-saving training at the swimming baths, moving another student him up and down against him for a couple of minutes in the pool. In 1974 student 36 told student 43 that Cable wanted him to take his pants off in class as he was uncircumcised. He told the student that he was going to speak to another teacher about it. A few days later student 36 told student 43 that he and his father had gone to see the offender, then the school principal. The offender did not, between 7 April 2014 and 26 August 2014, disclose this information to a member of the police force or another appropriate authority. These are the facts constituting the additional offence (ii) concerning Cable to be taken into account on count 1 of the indictment.

  1. Student 31 attended the school between 1972 (Year 7) and 1974 (Year 10). He was in Cable’s Tech Drawing class. Whilst in this class in 1973, then aged 13 years, the student was called to the front desk. Cable took hold of his buttock and squeezed it and moved his hand onto the front of the student’s pants and fondled his genitals. The student then returned to his desk. He ensured that he did not again stand near Cable at the front of the class. He saw Cable indecently assault many students in the same manner. In 1973, when he was playing school Rugby League at the nearby sports field, the student injured his leg and went to the change room. Cable entered the room and asked the student to show him his injury. Cable then removed his erect penis from his pants and attempted to push student’s head onto his penis. The student pushed Cable away with both hands and fled the room. Later that week, the student attended the offender’s office to tell him about Cable’s actions. He said, “I want to talk about what happened to me at Marist Park with Brother Romuald”. As soon as he mentioned the name, the offender said words to the effect, “No, no, no. Those kind of things don’t happen here. You can’t make up stories like that”. The student did not get the opportunity to elaborate further. Because of the offender’s response, the student did not inform anyone else about the assaults. The offender did not, between 7 April 2014 and 26 August 2014, disclose what the student (implicitly) told him to a member of the police force or other appropriate authority. These are the facts constituting the additional offence (i) concerning Cable to be taken into account on count 1 of the indictment.

  2. Student 47 attended the school from 1973, when he was in fifth form or year 11. On one occasion he came across a boy in the quadrangle who was visibly upset and crying. The boy was younger than the student, probably not more than 13 or 14 years of age. The boy told him that he had been abused by Brother Patrick. Although part of the agreed facts, this does not appear to be relevant.

Police investigations

  1. In 2013, police commenced investigations into allegations against O’Sullivan concerning his conduct whilst he was attached to the Hamilton Marist Brothers school between January 1971 and December 1977. During those investigations, the students whose complaints are the subject of the present charges informed police that they had told the offender of the sexual abuse to which they had been subjected. On 16 July 2013, O’Sullivan was charged with a number of child sexual offences relating to his actions during this time.

  2. As part of the investigation, the offender was spoken to by police on 8 April 2014. When asked if the offender had heard anything untoward in relation to O’Sullivan’s dealings with the students, the offender answered in a formal signed statement –

“No, I was completely shocked to hear about his matters. I was completely shocked”.

When asked if he could recall any former students or their parents making any complaint to him regarding the sexual abuse of students by O’Sullivan, the offender answered –

“I can say that no student or parent ever came to me with the complainants [sic, semble, complaints] of sexual abuse by Brother Dominic

  1. In 2012, police commenced an investigation into allegations of sexual abuse committed by Cable whilst he was a teacher at Marist Brothers Maitland and, in particular, at Marist Brothers Hamilton between 1971 and 1974. He was charged on 12 December 2012 and pleaded guilty to those and additional charges on 17 March 2015. As part of the investigation the offender was spoken to by police on 8 April 2014. During the interview, he denied speaking with students 6 and student 36. When asked if he recalled at any time students or others had complained to him about Cable’s dealings with the students, the offender answered in a formal signed statement –

“Well yes, there was one occasion only”.

He informed police that there had been one complaint of sexual abuse but he could not remember who had made it. He did inform police that he confronted Cable, who stated words similar to, “I thought I’ve been good in this area recently”. Cable had been arrested and charged with the substantive offences well before the offender was interviewed.

  1. On 14 February 2016, the offender attended Surry Hills police station with his legal representative and was subsequently arrested and cautioned in relation to the matters summarised above. On legal advice, he declined to be interviewed about them.

  2. The offender was charged in connection with the present matters, though in a different form in February 2017 and was committed to this trial for trial on 1 November 2017. On 3 November 2017 he was convicted of the matters to which reference is made below and was ultimately sentenced to an effective term of 18 months imprisonment commencing 20 April 2018 with a non-parole period of nine months ending on 19 January 2019. It is submitted that there is an overlap between those matters and the present in terms of proximity and that the principle of totality applies to limit or otherwise qualify a sentence of imprisonment that might now be imposed. I do not agree that there is any feature of overlap that requires application of this principle.

  3. Were a sentence to be imposed a discount of 15% for the offender’s plea would be appropriate.

Objective seriousness

  1. The very nature of the offence requires attention to be given to at least the following considerations, which must be measured as at the time the offence was committed: the seriousness of the concealed offences; the motive for concealment; the materiality of the concealed information both to investigation and proof; the understanding of the offender of the materiality of the concealed information; and the risk presented by the substantive offender to other potential victims. These considerations must be weighed in the context that the maximum term of imprisonment capable of being imposed is two years imprisonment. Whilst no one could suggest that offences of indecent assault (which carry a maximum term of 5 years imprisonment), especially on children placed in the care and under the authority of a teacher are not serious, it must be borne in mind that the offence of concealment under s 316(1) comprehends non-disclosure of information about offences carrying up to a maximum term of imprisonment of ten years. In the scale of offences covered by the provision, therefore, those involved in the present case must be placed somewhere towards the lower end of seriousness. Furthermore, the particular indecent assaults complained about here, though varying somewhat in seriousness also, by and large, lie at the lower end.

  2. So far as the materiality of the concealed information is concerned, this is limited, on the evidence before the Court, to the disclosures made to the offender by the students. As the prosecution rightly submits, in effect, the only information (and, thus, evidence) that could have been forthcoming from the offender would have been that of the complaints. At the material time the Cable and O’Sullivan had already been charged. The prosecution has not provided any evidence as to the significance to the investigation of the offender’s knowledge of the complaints made to him and no inference adverse to the offender that his information would have been of substantial, as distinct from some, materiality can be drawn in this respect unless it were proved beyond reasonable doubt. So far as materiality to the convictions of the Brothers is concerned, again there is no evidence that the complaints might have been significant in any substantial way. Speaking generally, such evidence would only be admissible in limited circumstances and not directly in proof of the substantive offences. Here, the general nature of most of the complaints would have rendered them less probative. Again, the prosecution has not attempted to make the case that the offender’s evidence of complaints might have been more than barely material in any trial. Nor, could there have been any real question that the concealed information might have been material in identifying the substantive offenders at the time the present charges cover, let alone apprehending them or protecting potential victims.

  3. There is no evidence, one way or another, as to the reasons for which, at the times specified in the charges against him, the offender did not disclose the complaints that had been made to him. However, none could have been worthy and several very unworthy. This is an issue upon which no conclusion can be drawn. By the time of the offences that are now under consideration, protection of the reputation of the school or the Marist Brothers was no longer possible and, as mentioned, Cable and O’Sullivan had already been charged. In short, the horse had already bolted.

  4. Thus, from the point of objective seriousness, there is little more than the bare fact that the offender committed a criminal offence where no actual adverse consequences have been established. This is not to say, however, that the functions of criminal punishment in respect of general deterrence and denunciation do not have a role to play in dealing with the offender. But the most significant controlling aspect must be the objective seriousness of the crime.

Criminal record

  1. On 3 November 2017, the offender was convicted in the District Court of offences that had occurred on 1 January 1976 and two offences committed on 22 September 1980. These offences were indecent assaults on a male. The appellant was sentenced to fixed terms of imprisonment of 6 months for two of the offences and a term of 15 months with a non-parole period of 6 months for the third offence. The total effective sentence was one of 18 months with a non-parole period of 9 months commencing 3 November 2017. These assaults were committed on students at Marist Brothers Hamilton and at Marist Brothers Kogarah when he was headmaster.

Victim Impact Statement

  1. A victim impact statement was read to the court by one of the students who was at Marist Brothers Hamilton between 1971 and 1974. He spoke movingly of his experience of sexual abuse at the hands of O’Sullivan and his sense of betrayal when, having complained to the offender, who promised to do something about it, the offender did nothing did nothing. The victim explained how difficult it was for him to come to grips with what happened to him and disclose it even to his partner. Even his grandparents and mother minimised what had happened. The consequences were serious and lifelong. One must understand, I think, that this is by no means an isolated story but, one way or another, part of the experience of many children exposed to sexual predators in the school context.

Health

  1. Tendered on behalf of the offender, without objection, was a report from Dr Olav Nielssen, a Forensic Psychiatrist, a report from Dr John McManus, a psychologist and a letter from his general practitioner, Dr Meers. Dr Nielssen had previously been consulted by the offender in July 2017 in connection with his earlier offences. A doctor relied on the information gathered at that time together with what was obtained on his interview with him on 30 April 2020. His report contains the offender’s account of the current offences, his personal history and a history of his various medical conditions. I shall deal with the former subject at a later point in these reasons. The offender’s personal history is unremarkable and does not require elaboration for present purposes.

  2. Dr Nielssen’s opinion is that the offender suffers from a depressive illness, which includes prominent anxiety and negative ruminations over and above the understandable effect of his range of medical conditions. He seemed quite depressed when he was interviewed. Dr Nielsen noted that the offender had previously reported the perception that there had been a decline in his cognitive function, probably from quite a high level, given his occupational attainment and other interests. A CT scan performed at Westmead Hospital showed age-related brain shrinkage, which is often associated with cognitive impairment and dementia. However, the offender was correctly oriented and up-to-date with current events, was able to provide a good account of his medical history, and his speech was fluent and coherent in a way that was not consistent with significant cognitive impairment. The perception of impaired cognitive function is a common symptom of depression, especially in the elderly. With respect to the potential effects of imprisonment, Dr Nielssen noted that the offender is now very elderly with a complex range of medical conditions that are beyond the capacity of the prison medical service to adequately manage. The ability to provide access to medical specialists has been further limited by the measures taken to attempt to quarantine prisons from the COVID-19 virus. In Dr Nielssen’s view, imprisonment would be far more onerous for the offender than for other prisoners and he thought he was unfit for further imprisonment. Dr Nielssen also expressed the opinion that the offender had demonstrated considerable remorse and insight in his discussion of the circumstances in which the offences took place. I deal with this matter below.

  3. Mr McManus, a psychologist, had been consulted by the offender in respect of a range of matters including those relating to the present charges. He has seen him on 10 occasions since 14 March 2019 with major presenting issues being depression, adjustment difficulties, loneliness and trauma in relation to a previous incarceration (the sentence previously served, referred to above). Mr McManus was of the opinion that the offender meets the criteria for the diagnosis of Persistent Depressive Disorder (Dysthymia) with Anxious Distress (Diagnostic and Statistical Manual – DSM5), in short, his depressive feelings are long-standing and persistently accompanied by tension, restlessness and worry. Mr McManus said that his impression of the offender is that he is an elderly man who, in many respects, is broken both physically and mentally. He is remorseful for his part in the system that has clearly caused distress and damage to former students. He was of the opinion that incarceration would be an onerous and intolerable burden due to the offender’s extensive psychological fragility and poor capacity for adjustment and adaptation, in conjunction with his poor state of physical health.

  4. The offender’s general practitioner, Dr Meers, described the main conditions which impacted upon the offender’s mobility and health, requiring regular medical review were: depression of three years duration for which he has been prescribed antidepressants and has been consulting a clinical psychologist; osteoarthritis, exacerbated by obesity, affecting his left knee, the pain and stiffness of which significantly impacts his mobility, which is dependent on using a walking stick and creates a high risk of falls; osteoarthritis and rotator cuff syndrome in the right shoulder, for which surgery would be appropriate but for his advanced age and frailty, impairing use of the right shoulder, especially in lifting or reaching above shoulder height, and causing some discomfort; recurrent kidney stones, in respect of which surgical intervention was necessary in 2018 and a ureteric stent was inserted and removed in February 2019, unacceptably delayed by his incarceration; and cardiac conduction disorder, complicated by hypertension, requiring regular review with his cardiologist, a Transient Ischaemic Attack having been suffered whilst in custody in July 2018 having been inappropriately treated for some three weeks and, were this to be repeated, would be very likely to put his health in jeopardy. Dr Meers considered that incarceration in light of his age and frailty would likely result in a rapid and terminal decline in the offender’s health.

Testimonials as to character

  1. A number of testimonials as to the offender’s character were tendered without objection. The offender’s nephew thought of him as part of his immediate family with whom he had a very close personal relationship. He is aware of the offences to which his uncle pleaded guilty as well as his previous conviction for sexual abuse and the sentence imposed for that offence. He knew of the offender when he came to stay with the family from time to time and when the family stayed with him. He frequently minded both his younger brother and himself, joined the family on holidays, weekends and attended many family celebrations. He says that, during all his interactions with and observations of the offender, he found him without fail to be a person of exemplary character. He said that he had always been a caring and compassionate man with a focus typically on the well-being of others. He found it impossible to reconcile the man he knew so well with the conduct for which he is now being sentenced. In short nothing that he ever saw or experienced of the offender suggested in the slightest way that he was other than beyond reproach. He said that he would have no hesitation in leaving his children in the offender’s supervision and care. The offender’s younger nephew has written a detailed testimonial to the same effect as did his niece. Amongst other things, both express shock and disbelief at the conviction of charges now faced by the offender and find them to be utterly out of character with a man they knew so very well.

  2. Another testimonial is given by a referee who met the offender, then headmaster of Marist College Ashgrove in Brisbane at the time, when the man was a student aged 12 years. He said that the offender was and still is deeply respected and admired within that school community. He was recognised as a man of inspiration and kindness, who “cemented” the entire Catholic community together, working extremely hard with little financial reward and focused on the betterment of other people. This referee suffered from significant difficulties in his early life, having left home at the age of 15. The offender, along with the Marist Brothers, took him in and paid for his boarding and academic school fees. He said the offender’s generosity and kindness totally changed his life. He said that the offender was a “father figure” to whom he regularly went for advice and guidance. He went on to do well academically, obtain a degree and have a strong and successful business career. He regarded the offender as a member of his family. (I note, however, that there is no reference to the offender’s 2017 convictions, although I assume the referee is aware of the present charges.)

  3. A former student at Marcelin College Randwick from 1965 to 1968 when the offender was a teacher there also provided a reference for the offender. This referee was aware of the offender’s convictions for child sexual offences and his pleas of guilty to the present offences. He speaks highly of the offender’s dedication to teaching as well as his kindly and caring manner. He saw nothing that suggested any unhealthy sexual interest in any student and heard no comments to this effect. He said that he later lived in Canberra when the offender was headmaster at Marist Brothers Pearce between 1993 and 2000 when 3 of his 4 sons attended the school. He saw the offender regularly during this time. He was an excellent headmaster and a dedicated teacher who gave his full attention to endeavouring to educate and develop the boys into fine young men. He had no concerns in entrusting his sons to the offender’s care. He was shocked to learn of the offender’s convictions, having been unaware of the proceedings. He thought the conduct attributed to the offender was completely out of character with the person he knew. The referee noted the seriousness of the failures of the church and responsible individuals to report widespread serious criminal offences and understood that the offender accepted that he must bear responsibility for any part perceived to be played by him in the shameful history. (Without in any way intending to be critical, I gather that this referee finds it difficult to accept that the offender is guilty of the offences he presently faces.)

  1. Other testimonials have been tendered to much the same effect from various persons who knew the offender well over many years coming from teachers and school employees. They appear to be responsible, mostly professional persons, whose references contain detailed information about the man they knew and, clearly enough, deeply respected. The career they describe is an impressive one of dedication to the students and schools in which he worked and in which he was a force for good.

  2. The current Provincial of the Marist Brothers Province of Australia who has known the offender for over 30 years and was, at one time, the Principal of one of the schools in which he taught, speaks of the offender’s fine reputation in education circles which he has now lost. He said that when Brothers are charged with or convicted of serious offences, they are placed on a personal Safety and Wellbeing Plan which restrict work, freedom of movement and involvement in other areas or activities. A Safety and Wellbeing Officer, employed by the Province, supervises adherence to the plan and maintains regular contact with the individual and maintains regular contact. The offender is already on such a plan and has been compliant with it. If he receives a non-custodial sentence, the plan will continue to apply to him.

Subjective features

  1. I have already referred to the offender’s medical and psychological condition. The offender also explained the offences (to a limited degree) to Dr Nielsen and Mr McManus. He told them that he had no memory of the specific reports referred to in the agreed facts and told the former that “the only knowledge I had at the time was a vague accusation against … [Cable] which I raised with him and he denied”. He said that he was not aware at that time of the existence of any policies or procedures for dealing with these kinds of complaints and said, “people’s expectations and people’s knowledge were radically different … personally I was very ignorant of such matters and very poorly equipped to deal with them”. The line of authority was directly to the Provincial but this was informal. He said that the school did not have a governing board to report to. He retired in 2000 but said that, when he was still headmaster in the 1990s, a policy was enacted that if anything like this came to attention the Provincial was to be contacted immediately. He said that, as distinct from the previous three decades, by this time “this kind of awareness became part and parcel of everyday life”. He said that, if he was in the situation again, with what he now knows, the outcome would have been “utterly different”. He said that he did not think he had “the faintest idea” when he was younger of the scourge that sexual abuse and the harm it does to people. He offender said much the same to Mr McManus. He expressed to both what was accepted by them as genuine remorse for his conduct.

  2. The offender’s otherwise good character is significantly qualified by the criminal convictions for indecent assault and his failure to take appropriate action in respect of the complaints made to him by students for whom he was responsible. Nevertheless it is appropriate to have regard to the other respects in which he seems to have been an influence for good, for little material return.

  3. The report of the Community Corrections Officer, tendered as part of the Crown papers without objection gives a somewhat different picture of the offender’s attitude to the offences, though I should point out, that the assumption both of the officer and, it seems, of the offender is that the crucial conduct was the failure to report the complaints at or around the time they were made. For the reasons I have explained, this assumption is seriously mistaken. The offender is not being punished for his moral failures at that time but for his criminal responsibility for the non-disclosure during the periods alleged in the indictment. The officer noted that he continued to deny culpability for the offences and showed limited insight into the impact his offending had on the victims, explaining (as I understand the report) that he had not concealed or failed to pass on information but could not recall that the allegations were made. This, of course, speaks of the present time since he could not, at the time the complaints were made, have failed to recollect them. He told the Officer that he pleaded guilty to the offences because, “the weight of the accusations convinced me that it was the right thing to do”. He said, “I would believe these people would feel aggrieved, damaged and offended against” and they would “want recognition of what they have been through”.

  4. The offender has addressed a letter to the Court in order, as he puts it, “to express my sincere remorse to the victims of child sexual abuse, and for the offences … which I have committed”. He says, amongst other things, that he understands that, had he reported crimes that had become known to him 50 years ago, further criminal activity might have been lessened or avoided altogether and that individuals who were harmed by these crimes could have been spared the pain and suffering they were caused. He says “I have a great deal of remorse and regret on this score. If I had my time again, I would unhesitatingly report any suspicions of such criminal conduct that came to my notice. For my dereliction of duty in this regard I humbly and sincerely apologise to the victims and their families, and to the Court”. He points out that he was called to appear in Newcastle before the Royal Commission on Institutional Responses to Child Sexual Abuse, which was a difficult experience but had a positive and beneficial result from his point of view since, at those hearings and with the passing of time since, he has come to understand the devastating impact that sexual abuse has on young people, in a way that he had not previously understood.

  5. Although I accept that sexual abuse of the kind reported to the offender was, at that time, not regarded with the seriousness that was appropriate, I do not accept that, in his position as headmaster, the offender would not have realised that the complaints were of serious misconduct involving, by any standards, the gross misuse by the Brothers of their positions as teachers. It may be that he was unsure as to what he should have done but I do not accept that he actually thought it might be appropriate to do nothing (with the possible exception of expostulating on one occasion), even if he was uncertain about what exactly he should do. However, the offender is not now being punished for what he then failed to do, but for what he failed to do between 7 April 2014 and 26 August 2014 in respect of Cable and 7 April 2014 and 13 September 2014 in respect of O’Sullivan.

  6. It may well be that the offender does not now recall either the actual complaints that were made to him or the names of the students who made them but I am unable to accept that he does not recall that a number of complaints of sexual misconduct were made about both Cable and O’Sullivan. This is especially so given his own sexual offences that were committed in January 1976 and September 1980.

  7. The strongest evidence of the offender’s remorse consists in his pleas of guilty to the offences in the indictment. It is clear, and the Crown does not dispute, the state of the evidence would have made it almost impossible for the Crown to prove beyond reasonable doubt in any trial that the offender believed, as distinct from suspected, that either Cable or O’Sullivan had committed sexual assaults against the students who complained to him. It would also have been difficult to establish that he was aware of its potential materiality in securing the prosecution of either man, this being a subjective rather than objective matter.

  8. In sum, I am prepared to accept that the offender is indeed remorseful for his failure to take action following the complaints that were made to him even though he has made excuses for not doing so which are unconvincing. I reiterate the crucial point that his failure to take action, however reprehensible at the time, was not then a criminal offence and, at all events, he has not been charged with that failure. The relevant occasions of non-disclosure are those which occurred on the dates specified in the indictment and his criminality must be assessed accordingly.

Sentence

  1. I have already explained why the offences, taking into account those on the Form 1, are at the low end of objective seriousness. It is almost certain that the offender will not commit any offence of this kind again and there is no reason to think that he presents a risk of the commission of any other offences. The low level of objective seriousness and the offender’s subjective features have not led to the conclusion, in the face of the need for denunciation and the requirements of general deterrence, especially where the protection of children is involved. The Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Accordingly, the offender is sentenced to a term of four months imprisonment commencing today and ending on 29 January 2021. To be served by way of Intensive Corrections Orders pursuant to s 7(1) of Crimes (Sentencing Procedure) Act 1999.

  2. The offender has been assessed by Community Corrections as suitable to undertake community service work and an order that he should do so is still effective although, with the pandemic, all community service work is currently suspended. (It is not appropriate to take account of this factor as the Court is bound by the applicable legislation and the mode by which an order is to be carried out is a matter for the Executive). The Court is satisfied that it is appropriate to order that the offender serve his sentence by way of an intensive corrections order, subject to the standard conditions, namely the offender must not commit any offence and must submit to supervision by a community corrections officer. I have considered whether the additional conditions referred to in 73A of the Crimes (Sentencing Procedure) Act 1999 should be imposed. The offender’s age, state of health and the relatively short term of the sentence constitute exceptional circumstances justifying the non-imposition of an additional condition.

Decision last updated: 30 September 2020

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