Richards v R

[2023] NSWCCA 107

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Richards v R [2023] NSWCCA 107

Hearing dates:

10 May 2023

Decision date:

19 May 2023

Before:

Beech-Jones CJ at CL [1]; Adamson JA at [11]; Price J at [121]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against sentence — Historical sex offences — whether sentencing judge took adequate account of delay

CRIME — Appeals — Appeal against sentence —finding of special circumstances — applicant previously sentenced for historical sex offences - principle of totality — whether total term of continuous imprisonment excessive and parole period inadequate — whether sentencing judge erred by failing to backdate commencement of sentence — alleged manifest excess

CRIME — Appeals — Appeal against sentence — whether sentencing judge erred in finding evidence of post-offence good character of little weight

CRIME — Appeals — Appeal against sentence — distinction between lack of further convictions and finding that offending behaviour ceased

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5A), 25AA, 44(2B), 47(2)(a)

Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61E(1A), 80, 81, 81A

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

House v The King (1936) 55 CLR 499; [1936] HCA 40

JL v R [2023] NSWCCA 99

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Kerr v R [2016] NSWCCA 218

Lonsdale v R [2020] NSWCCA 267

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Baker [2000] NSWCCA 85

R v Dennis (Court of Criminal Appeal (NSW), 14 December 1992, unrep)

R v Knight [2005] NSWCCA 241; (2005) 155 A Crim R 252

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Nightingale [2005] NSWCCA 147

R v Obbens [2022] NSWCCA 109

R v Spiers [2008] NSWCCA 107

R v Todd [1982] NSWLR 517

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Wakefield v R [2010] NSWCCA 12

Wu v R [2011] NSWCCA 102; 211 A Crim R 88

Category:

Principal judgment

Parties:

Desmond Richards (Applicant)
Rex (Respondent)

Representation:

Counsel:
P F Tehan KC / P Skinner (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Law Partners Australia Pty Ltd (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/139771; 2019/168986

Publication restriction:

Publication of names and any information or material that may lead to the identification of the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

4 February 2022

Before:

Woodburne SC DCJ

File Number(s):

2019/139771; 2019/168986

HEADNOTE

[This headnote is not to be read as part of the judgment]

Desmond Richards (the applicant) was charged under the Crimes Act 1900 (NSW) for 6 counts of indecent assault and 1 count of sexual assault with an act of indecency where the victim was under 16 years against a total of three separate victims, who were boys aged between 10 and 13 years old at schools where he was teaching. The applicant pleaded guilty and was sentenced to a term of imprisonment of 8 years, with a non-parole period of 5 years. The sentencing judge had found special circumstances and adjusted the statutory ratio between the non-parole period and the total term from 75% to 62.5%.

The following is a summary of the facts of the offences for which the applicant was sentenced. In 1969, the applicant, a Christian brother, was the head teacher of Year 6 at St Mary’s Cathedral School, within the Sydney Diocese. One evening, DP, then aged 12-13, was the only altar boy on duty for the evening mass. The offender opened the tuck shop for DP. When inside, in the dark, the applicant grabbed DP from behind, pulled down his pants and forced him to bend over (Count 1). DP struggled to free himself and ran outside. He told his mother that the applicant had tried to have sex with him. The following day, DP’s mother went to the school and spoke to the principal. The applicant did not touch DP again. DP did not report the offence to the police until 2019 when he learned of the conviction of George Pell.

In 1983, the applicant was the principal of the junior school of St Patrick’s College, Strathfield. CG, then aged 10, was indecently assaulted on a school camp when the applicant lay beside him in the dormitory at night and masturbated his penis (Counts 5 and 6). After school chapel choir rehearsals, the applicant would direct CG to stay back and touch his genitals and buttocks (Count 7). He repeated this conduct for the rest of 1983. At another camp the following year, the applicant engaged in similar conduct as before, including the sexual touching in bed (Count 8).

DJ, then aged 10-11, also attended St Patrick’s College and a school camp in 1984. The applicant sat on DJ’s bed and engaged in sexual touching (Count 9). In the summer of 1984-1985, the applicant insisted on being present to supervise the boys changing clothes at school. In 1984, DJ was in the locker room changing for the swimming carnival. The applicant dried DJ’s genitals with a towel, groping and fondling his genitals in the process (Count 10). This occurred on several further occasions. In March 2019, DJ reported the offending to police.

The applicant has been sentenced by five separate judges for a total of 24 offences against 16 different children aged between 10 and 15 years, at several different schools, over a total period of 21 years from 1966-1987. Up until the imposition of the most recent sentence, which was the subject of this appeal, the applicant had been in custody since November 2014.

The applicant sought leave to appeal against his sentence on five grounds based on the sentencing judge’s remarks, including that: her Honour failed to take adequate account of the delays in the charging of the applicant, her Honour did not backdate the commencement of the applicant’s sentence to a fair starting point, the total term of continuous imprisonment imposed on the applicant since 2014 was well in excess of 75% of the total sentence and the resulting parole was inadequate, the indicative sentences in respect of each charge and thereby the aggregate sentence was manifestly excessive and her Honour erred in finding that there was limited evidence of good character and that it was a matter of very little weight.

The Court held, dismissing the appeal (Adamson JA, Beech-Jones CJ at CL and Price J agreeing):

1. The choice of a commencement date and whether to backdate it, taking into account pre-sentence custody and the totality principle, was a matter for the sentencing judge’s discretion. The sentencing judge was plainly aware of the chronology of the proceedings and when the pleas of guilty were entered into, having set it out in detail in her reasons. It was open to the sentencing judge to determine that the sentence ought commence on 30 July 2021: [66]- [67].

Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J); [1997] HCA 26, applied.

1. The weight to be given to the applicant’s post-offence good character fell within the sentencing judge’s discretion and varies according to all the circumstances of the case. The assessment that it was of little weight was open to her Honour: [71].

Neal v The Queen (1982) 149 CLR 305 at 326 (Brennan J); [1982] HCA 55; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [36] (McHugh J); R v Baker [2000] NSWCCA 85, applied.

1. There was no error in the manner in which the sentencing judge took into account delay. It is not uncommon for there to be a significant delay in the reporting of child sex offences, and the delay can be taken to be a consequence of the nature of the offending and the applicant’s own conduct. It is difficult to see how delay could operate as a factor in mitigation: [84]-[87].

2. Perpetrators of sexual offences against children are not entitled to a discount because their victims do not all come forward at the same time: [4] (Beech-Jones CJ at CL, Adamson JA and Price J agreeing).

R v Obbens [2022] NSWCCA 109, distinguished.

1. The principle of totality requires the total criminality to be considered, not only for the offences for which the offender must be sentenced, but also for those for which the offender has already been sentenced. The sentencing judge is to sentence on the basis that previous sentences imposed for the episode of criminality are correct and is not to attempt to alter them by the sentence imposed: [90]. Her Honour’s reasons demonstrate that the sentence arrived at was the product of careful consideration of all relevant factors, including the actual effect of the previous sentences on the length of the applicant’s custody: [95]-[96].

Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J); [1997] HCA 26; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 (MAK) at [99] (Spigelman CJ, Whealy and Howie JJ), applied.

1. The sentencing judge was cognisant of the cumulative effect of the various sentences on the ratio of the combined non-parole periods to the total effective sentence: [9] (Beech-Jones CJ at CL, Adamson JA and Price J agreeing).

2. Whether a sentence is manifestly excessive is a conclusion which does not depend on the establishment of patent error. The indicative sentences may be relevant, but an excessive indicative sentence may not result in an aggregate sentence which is manifestly excessive: [103]-[104]. The sentence was not manifestly excessive, having regard to the maximum penalties, seriousness of the offences, the fact that there were three victims and the applicant’s substantial criminal history: [108].

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528; Kerr v R [2016] NSWCCA 218 at [114] (Bathurst CJ, Hoeben CJ at CL and Price J agreeing).

Judgment

1. BEECH-JONES CJ at CL: Subject to two matters, I agree with the reasons of Adamson JA.

2. First, the applicant sought to rely on the passage from R v Obbens [2022] NSWCCA 109 (“Obbens”) at [20] (extracted in the judgment of Adamson JA at [89]) to support the proposition that an offender, such as this applicant, who faces sentence for an offence related to earlier offending for which they have already received a custodial sentence and now face a return to custody, is necessarily entitled to some discount beyond the application of the totality principle as explained in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 (“Mill”) at 64. As explained by Adamson JA, if the passage from Obbens is meant to establish any such principle, then it is not applicable here as the applicant is not returning to custody.

3. Otherwise, I note that in Obbens at [21], Hamill and Dhanji JJ relied on the following passage from R v Todd [1982] 2 NSWLR 517 at 519-520 (“Todd”) for support for the passage noted above:

“Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.” (emphasis added)

4. Consistent with the facts of Todd, this passage is directed to the circumstance where an offender has been charged with the subject offence but there is a “lengthy postponement” of the sentencing proceedings for some reason, such as the offender being sentenced interstate. It reflects the necessity to consider the effect of undue delay in the criminal justice system on an offender. It is not directed to the circumstance, such as here, where fresh charges are laid against an offender because another victim comes forward. In the case of child sexual assault, such offences are not “stale crime[s]”. Leaving aside Mill, perpetrators of sexual offences against children are not entitled to a discount because their victims do not all come forward at the same time.

5. Second, ground 3 of the notice of appeal contends that her Honour erred in structuring the sentence imposed by her Honour such that, even though a finding of special circumstances was made, the ratio of the combined minimum term of all the sentences the applicant has received and will serve to the combined length of his sentences is approximately 80%.

6. In Lonsdale v R [2020] NSWCCA 267 at [65], N Adams J and myself summarised the principles applicable to such a complaint as follows:

“Section 44(2) of the Sentencing Act has no direct application to any analysis of a total effective sentence that results from the operation of two or more sentences. Nevertheless, it is common to make a finding of special circumstances under s 44(2) to ameliorate the effect of accumulating sentences that would otherwise result in the ratio of the ‘effective’ non‑parole period exceeding 75% of the effective total term (see GP v Regina [2017] NSWCCA 200 at [16]; ‘GP v R’; CM v R [2020] NSWCCA 136 at [35]; ‘CM v R’; R v Simpson (1992) 61 A Crim R 58 at 60-61.) Further, it has been accepted that it is incumbent on a sentencing judge to consider or advert to the effect of accumulated sentences they may impose where the ratio of the effective non-parole period exceeds 75% of the total effective term (McKittrick v R [2014] NSWCCA 128 at [154]; GP v R at [22]). In such cases, the question is ‘whether the record of proceedings leads to an inference that the matter was considered or adverted to or not’ (GP v R at [22]). Thus, in CM v R it was concluded that the sentencing judge did not intend ‘a result which would require the applicant to spend 87.5% of the “effective” term of imprisonment in custody’ (at [40]).” (emphasis added)

7. As noted by Adamson JA, the sentencing judge addressed totality in detail. Further, the sentencing judge stated:

“… I have necessarily given attention to the offender’s present circumstances, as I am obliged to do. Further, I have necessarily carefully considered the fact that this is the fourth time the offender has been discretely prosecuted and so the third time that he faces a possible custodial sentence to commence at the end or during his current non-parole period, such that he will not be released to parole.

I have spent considerable time considering the fact of the previous sentences, the appropriate sentence to be determined by me, remaining conscious of the previous sentences, and the requirements and constraints of totality. Ultimately, when the sentence is passed and is examined, it should be noted that it has been imposed in full knowledge of the previous sentences and that I have remained acutely conscious of the effect of the sentence to be imposed by me, both its individual effect and its overall effect.” (emphasis added)

8. Later in the reasons, her Honour stated:

“I have so decided and record that I have found special circumstances on the combined basis of the advanced age and health condition of the offender which will lead to some level of the sentence being more onerous than would otherwise be the case, the fact that he has been serving a sentence since 2014 and accumulation of sentence.” (emphasis added)

9. In the face of these statements, I am not satisfied that the sentencing judge was not cognisant of the cumulative effect of the various sentences on the ratio of the combined non-parole periods to the total effective sentence. To the contrary, I am satisfied that the sentencing judge was cognisant of that matter. I would reject ground 3.

10. I agree with the orders proposed by Adamson JA.

11. ADAMSON JA: Since writing my reasons, I have had the benefit of reading the additional remarks of the Chief Judge, with whose reasons I agree.

12. On 4 February 2022, Woodburne SC DCJ (the sentencing judge) sentenced Desmond Richards (the applicant) to a term of imprisonment of 8 years, commencing on 30 July 2021 and expiring on 29 July 2029, with a non-parole period of 5 years, commencing on 30 July 2021 and expiring on 29 July 2026. The sentencing judge had found special circumstances and adjusted the statutory ratio between the non-parole period and the total term from 75% to 62.5%.

13. The applicant seeks leave to appeal against the sentence on the following grounds:

“1.   Her Honour failed to take adequate and correct account of the delays in the charging of the applicant and the consequent four sentences that were imposed upon him in sequence resulting in three extensions of his imprisonment.

2.    Her Honour did not backdate the commencement of her sentence to a fair starting point - from when the applicant had unequivocally indicated his pleas of guilty to six out of the seven counts.

3. Despite her Honour finding 'special circumstances' within s 44(2B) of the Crimes (Sentencing Procedure) Act 1999, as did all three District Court judges who had sentenced the applicant since 2014, the total term of continuous imprisonment imposed on the applicant since 2014 is well in excess of 75% of the total sentence; and the resulting parole period is inadequate.

4.    The indicative sentences in respect of each charge upon the indictment are manifestly excessive; and as a result, the aggregate sentence passed and the aggregate non-parole period passed are manifestly excessive.

5.    The learned Judge erred in finding that: ‘In my assessment, there is very limited evidence of otherwise good character in the years after the offences were committed and it is a matter of very little weight indeed.’ (RS 51).”

The sentence hearing

14. The sentence hearing took place over 4 partial days: 20 October 2021, 29 October 2021, 14 December 2021, 31 January 2022. The sentence was imposed on 4 February 2022. The Crown tendered the notice of committal, the indictment (which charged 10 counts), the agreed facts, the applicant’s criminal and custodial histories, a victim impact statement of CG and the agreed facts relating to an offence committed in 1980 for which the applicant was sentenced in 2006 to 2 years’ imprisonment, with a non-parole period of 1 year, which was wholly suspended. The Crown also tendered the sentencing judgments of Zahra SC DCJ, McLennan DCJ and Armitage ADCJ, each of whom had previously sentenced the applicant.

15. The following documents were tendered on behalf of the applicant: two letters of remorse dated 15 October 2018 and 14 October 2021; psychiatric and psychological reports, pre-sentence reports relating to the applicant and his risk of re-offending and custodial records, including records of courses undertaken by the applicant in custody, as well as his custodial health records.

16. The applicant gave evidence in which he adopted his letters of remorse and was cross-examined. His evidence in cross-examination included the following:

“Q. Mr Richards, do you agree that in rubbing your erect penis in between the buttocks of the young person, DP, that you must have been sexually aroused at the time?

A. Yes well I could have been. I suppose - I don’t - you’re looking at action, I don’t look at it from action, I look at it from the damage done to the person and this is why I could not, when you mentioned one particular thing, I’m not thinking of that, I’m thinking of the person who’s living now and his life, and the damage that I have done to that person.

Q. I’m asking you Mr Richards about you and yourself at the time of these offences, do you understand that?

A. Yes 30 years ago, yeah.

Q. I’m going to take you now to another part of the facts in relation to the victim CG …’[CG] then felt his penis being masturbated whilst the offender was arousing himself.’ Now you’ve pleaded guilty to those facts haven’t you?

A. I did.

Q. And you accept - well do you accept that you must have been sexually aroused at the time if you were arousing yourself?

A. Yes.

Q. Okay. So do you admit … that you were sexually attracted to young boys at the time of these offences?

A. No I can’t sort of say that I can remember 30 years [ago] what my thoughts were at that particular time.”

17. Mr Skinner, who appeared for the applicant before the sentencing judge, submitted that the discount for the applicant’s plea of guilty ought be 25%. (However, there is no challenge to her Honour’s finding that a discount of 10% only ought be allowed.)

18. Mr Skinner also submitted that:

1. there had been, because of “late complaints”, substantial delay in the prosecution for which the applicant “was not responsible” and which constituted a significant mitigating factor;

2. the applicant was “entitled to some leniency for his otherwise good character”;

3. the sentencing judge ought find special circumstances on the basis of the lack of rehabilitative options in custody; the accumulation of sentences; the applicant’s physical and mental infirmities; and the need for an “appropriate period of parole to assist [the applicant] on re-entry to the community”; and

4. mitigating factors included his pleas of guilty, his age, remorse, low risk of re-offending, effective rehabilitation and lack of need for further general deterrence or for specific deterrence.

19. Mr Skinner, in written submissions, identified the following as a mitigating factor (this is relevant to grounds 4 and 5):

“His rehabilitation to date - relying not just on the numerous reports and records that have now been generated in the criminal justice system and community corrections services since Br Richards was first charged with criminal offences in 2013, but also upon the clear evidence that these offences were all committed by him in a closed period of 20 years in his life, from about 1966 to 1986. He was aged between 28 and 48 at that time, and then he stopped. He is now 83 years of age.”

20. Mr Skinner submitted that there ought be a substantial degree of concurrency due to the “sequential charging [which was] through no fault of the victims” and that there should be a “significant period of parole”. He referred to R v Todd [1982] NSWLR 517 and Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. He submitted that the sentence imposed ought have the applicant released on 15 December 2021 (the earliest date of his release under the sentence imposed by Armitage ADCJ) with a lengthy parole period thereafter.

21. The Crown submitted:

1. s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) applied (namely, that “[i]n determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence”);

2. it would be open to the Court to find that the applicant had good prospects of rehabilitation;

3. although age and ill-health might diminish the weight to be given to general and specific deterrence, the sentence was required to reflect the seriousness of the offending; and

4. s 25AA of the Act required the sentencing judge to have “regard to the trauma of sexual abuse on children as understood at the time of sentencing”.

22. The Crown did not submit that the Court ought not make a finding of special circumstances. On the question of delay, the Crown relied on authorities which included R v Dennis (Court of Criminal Appeal (NSW), 14 December 1992, unrep) and R v Spiers [2008] NSWCCA 107 at [37]-[38].

The sentencing judgment

23. The facts set out below principally derive from the sentencing judge’s reasons, although some of the detail regarding the applicant’s previous offending derives from evidence before the sentencing judge.

Previous sentences imposed on the applicant

24. In order to address, at least, grounds 1 and 3, it is necessary to have regard to the terms of imprisonment previously imposed on the applicant. The applicant had, up to the time of the imposition of the most recent sentence, been in custody since 7 November 2014, serving sentences imposed on him for child sex offences following his pleas of guilty.

25. The current sentence, together with the previous custodial sentences, are summarised in the following table.

Sentence imposed in Gosford District Court on 28 March 2006 of 2 years’ imprisonment commencing on 28 March 2006 and expiring on 27 March 2008, with a non-parole period of 1 year (wholly suspended).
Count	Year	Victim/age at time of offending	Offence (section of Crimes Act 1900 (NSW))/maximum penalty	Sentence (following plea of guilty)
1	1980	X/11 years	Indecent assault on male (s 81)/5 years	2 years with non-parole period of 1 year (wholly suspended)
Aggregate sentence imposed by Zahra SC DCJ on 27 November 2014 of 3 years, 3 months commencing on 7 November 2014 and expiring on 7 February 2018, with a non-parole period of 2 years (earliest release date of 6 November 2016)
Count	Year	Victim/age at time of offending	Offence (section of Crimes Act)/maximum penalty	Indicative sentence following discount of 25% for plea
1	1972	DHO/12 years	Indecent assault on male (s 81)/5 years	2 years, 3 months
2	1972	DHA/12-13 years	Indecent assault on male (s 81)/5 years	2 years, 3 months
3	Between 1972 and 1976	GB/13 years	Indecent assault on male (s 81)/5 years	2 years, 3 months
4	1982	JS/11 years	Indecent assault on male (s 81)/5 years	2 years, 3 months
Aggregate sentence imposed by McLennan DCJ on 16 December 2016 of 6 years commencing on 16 December 2016 and expiring on 15 December 2022, with a non-parole period of 3 years (earliest release date of 16 December 2019)
Sequence	Year	Victim/age at time of offending	Offence (section of the Crimes Act)/maximum penalty	Indicative sentence following discount of 25% for plea
H57566125
1 + seq 3-4 (Form 1)	1977	MOR/11 years old	Indecent assault on male (s 81)/5 years	2 years
2	1977-1978	MOR/11 or 12 years old	Indecent assault on male (s 81)/5 years	18 months
5	1977-1978	MOR/11 or 12 years old	Indecent act on male (s 81A)/2 years	9 months
6 + seq 7, 8, and 9 (Form 1)	1977	BP/10 years old	Indecent assault on male (s 81)/5 years	3 years
10	1977	BP/10 years old	Indecent assault on male (s 81)/5 years	3 years
11	1977-1978	BP/11 years old	Indecent act on male (s 81A)/2 years	12 months
H58088461
1	1982	PH/11 years old	Indecent assault on male (s 81)/5 years	18 months
2	1985	AS/11 years old	Sexual assault (category 4) with act of indecency/victim < 16 years (s 61E(1))/6 years	12 months
5	1984	SC/about 9 or 10 years old	Sexual assault (category 4) with act of indecency/victim < 16 years (s 61E(1))/ 6 years	2 years
H62769439
2 + seq 1 on Form 1	1966	DH (who was deaf and mute)/15 years old	Indecent assault on male (s 81)/5 years	2 years, 6 months
Aggregate sentence imposed by Armitage ADCJ on 17 October 2018 of 6 years commencing on 16 December 2018 and expiring on 15 December 2024, with a non-parole period of 3 years (earliest release date of 16 December 2021)
Count	Year	Victim/age at time of offending	Offence (section of the Crimes Act)/maximum penalty	Indicative sentence following discount of 25% for plea
1	1983	SB/10 or 11 years old	Indecent assault on male (s 81)/5 years	2 years
2	1986	JD/10 or 11 years old	Sexual assault without consent, have sexual intercourse with person under 16 years (s 61D(1))/10 years	3 years, 9 months
3	1986/1987	JD/10 or 11 years old	Sexual assault, indecent assault of person under authority (s 61E(1A))/6 years	2 years, 3 months
Aggregate sentence imposed by Woodburne SC DCJ on 4 February 2022 of 8 years commencing on 30 July 2021 and expiring on 29 July 2029, with a non-parole period of 5 years (earliest release date of 29 July 2026)
Count	Year	Victim/age at time of offending	Offence (section of the Crimes Act)/maximum penalty	Indicative sentence following discount of 10% for plea
1	1969	DP/12-13 years old	Indecent assault on male (s 81)/5 years	3 years, 4 months
5	1983	CG/10 years old	Indecent assault on male (s 81)/5 years	3 years, 9 months
6	1983	CG/10 years old	Indecent assault on male (s 81)/5 years	3 years, 7 months
7	1983-1984	CG/10-11 years old	Indecent assault on male (s 81)/5 years	2 years, 11 months
8	1984	CG/11 years old	Indecent assault on male (s 81)/5 years	2 years, 8 months
9	1984	DJ/10-11 years old	Indecent assault on male (s 81)/5 years	3 years, 7 months
10	1984-1985	DJ/11 years old	Sexual assault (category 4) with act of indecency/victim < 16 years (s 61E(1))/ 6 years	3 years

26. As a consequence of the offence in 1980 for which a suspended sentence of 2 years was imposed, the applicant’s name was placed on the Child Protection Register for a period of 8 years (until 2016). In March 2010, the applicant left Australia, having been transferred by the Roman Catholic Church to Rome. He returned to Australia on 7 December 2012 to visit his sister and undergo surgery for prostate cancer. He returned to Rome on 27 April 2013. On 30 October 2013, he returned to Australia to visit his sister. He had booked a return flight to Rome which was due to depart on 27 November 2013 but, on 5 November 2013, he was arrested and charged with the offences for which he was sentenced by Zahra SC DCJ.

27. As can be seen, the applicant has been sentenced for a total of 24 offences (not including those on Form 1s) against 16 different children (X, DHO, DHA, GB, JS, MOR, BP, PH, AS, SC, DH, SB, JD, DP, CG, DJ), aged between 10 and 15 years, at several different schools, over a total period of 21 years (from 1966-1987). He has been sentenced by five different judges: a sentencing judge (on 28 March 2006); Zahra SC DCJ (on 27 November 2014); McLennan DCJ (on 16 December 2016), Armitage ADCJ (on 17 October 2018) and the sentencing judge (on 4 February 2022), four of whom have imposed full-time custodial penalties. The applicant has been in custody since 7 November 2014.

The facts of the offences for which the applicant was sentenced by the sentencing judge

28. The following outline of the facts is derived from the sentencing judge’s summary of the agreed facts in the reasons for judgment.

29. The applicant was born in 1937. He became a Christian Brother and worked as a teacher in several schools. Between 1967 and 1971, the applicant worked as a teacher at St Mary’s Cathedral School, within the Sydney Diocese.

30. In 1968, DP, who was born in 1957, started attending the school in Year 5. His teachers included secular teachers and those, such as the applicant, who were “anointed” members of the church. In 1969, the applicant became the head teacher of Year 6 and, as such, frequently taught DP, then aged 12-13 years. DP was interested in assisting with mass services as an altar boy. He performed this role once or twice a week and assisted at two services a day, at lunchtime and in the evening. The lunchtime service was a popular service for altar boys because it came with the opportunity of obtaining food from the tuck shop (which the applicant would open for that purpose) and time away from class.

Offence against DP

Count 1: indecent assault against DP

31. One evening, DP was the only altar boy on duty for the evening mass. The offender approached DP in his usual dark-coloured clerical robes and used the key to open the tuck shop, which was completely dark. When inside, the applicant grabbed DP from behind and wrapped an arm around his waist and another around his pants line, pulling down his pants and forcing DP to bend over. DP experienced extreme fear when he felt the applicant’s erect penis between his buttocks. DP struggled to free himself and ran outside. He pulled his trousers and underwear up and caught the bus home. On his arrival, he told his mother that the applicant had tried to have sex with him in the tuck shop.

32. The following day, DP’s mother went to school and spoke to the principal to tell him that the applicant must not come near her son. The applicant continued in his role as head teacher for Year 6. He did not touch DP again.

33. While DP told family members about the assault, it was not until 2019, when he learned of the conviction of George Pell that he decided to report the offence to police.

Offences against CG

34. CG was born in 1972 and, from 1983-1990, attended St Patrick’s College, Strathfield, where the applicant was the principal of the junior school. In May 1983, CG (then aged 10) attended a school camp at a convent in the Blue Mountains, as did the applicant.

35. The applicant supervised the students while they were showering and directed them to drop their towels as “this was the way God intended”. The applicant patted CG on the buttocks before it was his turn to enter the shower.

Count 5: indecent assault on CG

36. At about 8pm that evening, CG was asleep in a dormitory. A man came and lay beside him in a “spooning” position. CG felt that the man was aroused. The man then masturbated CG’s penis. When the man stood up to leave, CG recognised him as the applicant.

Count 6: indecent assault on CG

37. The following night, the same thing occurred. CG was too scared to move or say anything.

38. When CG returned to school, he accidentally hit a tennis ball into the garden and went to retrieve it. The applicant punished him by beating his hands with a strap.

Count 7: indecent assault on CG

39. Although the school chapel choir was run by the applicant, CG wanted to join, believing that all activities would be conducted in a group setting. During practice, the applicant inserted three fingers into CG’s mouth to show how wide his mouth needed to be to sing properly. After the class, the applicant directed CG to stay back. The applicant pulled CG towards himself and touched his genitals and buttocks.

40. After this incident, the applicant often directed CG to stay back. The applicant repeated the offending conduct for the rest of 1983. The applicant would also approach CG in class and press himself against his back. After school, the applicant would hit CG with a strap for alleged wrongdoings. On such occasions, the applicant would touch CG’s genitals and buttocks.

Count 8: indecent assault on CG

41. In 1984, CG was in Year 6. He attended another camp in the Blue Mountains. The applicant directed CG to help him in a small room. While there, the applicant touched CG’s genitals. During both evenings, CG once again engaged in similar conduct to that referred to above (the shower ritual and the indecent assaults in bed).

42. Subsequently, on a school trip to Canberra in 1984, the applicant continued to touch CG. Later that year, the applicant’s mother died and CG sang in the choir at her funeral. During the service, CG fainted. The applicant did not touch CG again. In 1985, CG moved to the senior school.

Offences against DJ

43. DJ, who was born in 1973, started in Year 5 at St Patrick’s, Strathfield in 1984 where the applicant was then the principal of the junior school. DJ attended a school camp in the Blue Mountains.

Count 9: indecent assault

44. When DJ was in bed in the dormitory in the middle of the night, the applicant sat on his bed and moved his hands over DJ’s genitals and underneath his buttocks. This lasted for a “lengthy period of time”, during which the applicant said to DJ, “It’s alright if it feels good”; “You can’t tell anyone, you will be the one in the wrong if you do”; “You can’t tell mum and dad, you will let them down”; “No one will believe you”; and “This is between the two of us, you can’t tell anyone. It’s our little secret.”

45. When the applicant left DJ, DJ saw him stop at another child’s bed. DJ did not tell anyone what had happened because he was fearful.

Count 10: sexual assault (category 4) – assault and commit act of indecency

46. When DJ got back from camp, he encountered the applicant regularly. In the summer of 1984-1985, the applicant insisted on being present to “supervise” the boys changing clothes. In 1984, DJ was in the locker room, changing for the swimming carnival. The applicant dried DJ’s genitals with a towel and, in the process, he groped and fondled DJ’s genitals, testicles and buttocks. Afterwards he insisted on pulling up DJ’s underpants. The groping continued. This occurred on several further occasions until about midway through the Year 6 term in 1985.

47. In March 2019, DJ contacted police and provided a statement about the offending.

The laying of charges

48. The sentencing judge set out what occurred following the laying of the first charge against the applicant. Her Honour said:

“According to evidence the offender gave before his Honour Judge Zahra SC in 2014, in about 1985 the offender was charged with an offence of indecent assault which was said to have occurred at a camp in Katoomba, however the charge was withdrawn by the prosecution and dismissed. It was after he was charged that he was withdrawn from teaching children.

Thereafter he continued in the employment of the Christian Brothers organisation, mainly engaged in administration and IT.

It appears that by 1997 further allegations of sexual misconduct were made by four schoolboys, said to have occurred between 1974 and 1982. It was in this context that a psychological evaluation of the offender was undertaken at Encompass House over five days. This is referred to in the judgment of his Honour Judge Zahra SC. It appears that those charges were ultimately ‘dropped’ and some of the complainants received financial help from the Order to undertake counselling. Encompass House is said to have been established to treat a number of members of religious orders with a history of psychosexual issues. The offender was treated by way of inpatient program between September 2002 and April 2003. Thereafter he continued treatment, essentially for what was said to be anxiety and depression, with a psychologist, Mr Perritt, until 2007. Again, this is set out in the judgment Zahra SC DCJ.

In November 2003 the offender was charged with an offence of indecent assault on male relating to offending in 1980. …”

The laying of the charges which led to the present convictions

49. The following narrative, which is derived from the sentencing judgment, concerns the charges that led to the present convictions. It is relevant to ground 2, which concerns the time at which the applicant indicated that he would plead guilty to the offences of which he was convicted.

50. On 20 June 2019, the applicant appeared before Burwood Local Court in relation to:

1. a charge concerning DP of assault with intent to commit buggery contrary to s 80 of the Crimes Act 1900 (NSW) (which carried a maximum penalty of 5 years’ imprisonment); and

2. charges relating to CG and DJ (which became counts 5 to 10 on the plea indictment).

51. On 8 November 2019, the applicant was charged with offences relating to MM (Counts 2-4 on the plea indictment). From 28 November 2019, all of the charges relating to the four complainants (DP, CJ, DJ and MM) proceeded together.

52. On 29 September 2020, the applicant was committed for trial. The notice of committal contained 12 charges. At that stage, the applicant was not prepared to plead to these matters as he intended to apply for a permanent stay of proceedings. The case conference certificate noted that if the application was unsuccessful, there would be likely to be a plea (in respect of which the applicant would submit on the appropriate discount).

51. On 15 December 2020, the District Court refused the application for a stay and the matter was listed for arraignment on 19 February 2021. The matter was further adjourned to 19 March 2021, at which time the applicant indicated that he would defend the counts concerning DP and MM (counts 1-6 on the original indictment) but that the counts concerning CG and DJ (counts 7-12 on the original indictment which became counts 5-10 on the plea indictment) would be “short matters”. The matter was fixed for trial on 13 September 2021.

52. On 30 July 2021, following plea negotiations, the plea indictment was presented, the accused was arraigned, and guilty pleas entered in relation to count 1 (concerning DP) and counts 5-10 (concerning CG and DJ). The previous charge of assault with intent to commit act of buggery against DP became a charge of indecent assault. The applicant maintained his plea of not guilty in relation to counts 2-4 (which related to MM).

53. On 9 September 2021, the Crown informed the Court that there would be no further proceedings in relation to counts 2-4 (the charges concerning MM). The sentence hearing was set down for 20 October 2021.

Objective seriousness

56. The sentencing judge assessed count 1 (DP) as being within the mid-range; counts 5-8 (CG) as being slightly above the mid-range, count 9 (DJ) as being at the mid-range and count 10 (DJ) as being above the mid-range.

57. The sentencing judge did not find that the lack of planning mitigated the offending. Rather, her Honour said that the applicant “capitalised on opportunities to offend against [his victims] and on other occasions he created the opportunity to assault his victims.”

Other matters

58. The sentencing judge found that the applicant’s moral culpability was not reduced by subjective matters and that he was not a person of good character at the time he committed the offences. Her Honour found that the applicant “was assisted by his lack of relevant convictions and the respectable positions within the community and his employment that he held. Such standing assisted him to gain access to the victims who he then subsequently sexually abused.”

59. The sentencing judge accepted that the applicant had good prospects of rehabilitation, was unlikely to reoffend “in light of his advanced years and change in circumstances” and was, to a limited extent, remorseful. Her Honour, when referring to the applicant’s cross-examination, said that the applicant was “reluctant to embrace the patently obvious fact that he was sexually attracted to young male school children or that he knew what he did was morally wrong at the time he did it”.

60. The sentencing judge referred to the statutory ratio in the following passage from her reasons:

“The law provides that a court imposing an aggregate sentence of imprisonment in respect of two or more offences on an offender may set one non-parole period for all of the offences to which the sentence relates after setting the term of the sentence. The term of the sentence that will remain to be served after the non‑parole period set for the aggregate sentence of imprisonment is served must not exceed one third of the non-parole period unless the court decides that there are special circumstances for it being more, in which case the court must make a record of reasons for that decision.

I have so decided and record that I have found special circumstances on the combined basis of the advanced age and health condition of the offender which will lead to some level of the sentence being more onerous than would otherwise be the case, the fact that he has been serving a sentence since 2014 and accumulation of sentence.”

61. Her Honour found that the Act mandated a discount of 10% for his pleas of guilty.

62. The sentencing judge found, by reference to the factors required to be taken into account pursuant to s 3A of the Act, that the offending called for the application of the principles of general deterrence, punishment, accountability and denunciation. Her Honour accepted that less weight could be placed on specific deterrence.

63. The sentencing judge confirmed that s 25AA of the Act required the applicant to be sentenced in accordance with “sentencing patterns and practices at the time of sentencing, not at the time of the offence, applying the maximum penalty and any standard non-parole period that existed at the time of the offence and not at the time of sentencing, and having regard to the trauma of sexual abuse on children as understood at the time of sentencing”. Her Honour was satisfied that no penalty other than imprisonment was appropriate.

64. With respect to accumulation, the sentencing judge said:

“in my assessment, having regard to the nature and number of offences and the fact that there were three separate victims, subject to the constraints of totality, partial accumulation of sentence in appropriate.”

65. With respect to totality, her Honour noted that, at the time the applicant was charged (May 2019), he was serving the custodial portions of the sentences imposed by McLennan DCJ and Armitage ADCJ. The sentencing judge also noted that the applicant had been in custody solely in relation to the present offences (for which her Honour was to sentence him) since 15 December 2021 (when he would have been eligible for parole under the sentence imposed by Armitage ADCJ).

66. With respect to the commencement date, her Honour referred to the obligation in s 24(a) of the Act to take into account time spent in custody in relation to the offence. Her Honour said further:

“The offender was charged with the present offences in about May 2019 at which time, as previously mentioned, he was in custody serving the non-parole periods of the sentences imposed by his Honour Judge McLennan SC and his Honour Acting Judge Armitage.

The non-parole period for the sentence imposed by his Honour Judge McLennan SC expired on 15 December 2019 and the non-parole period for the sentence imposed by his Honour Acting Judge Armitage expired on 15 December 2021. As such, the offender has been held in custody solely in relation to the present offences since 15 December 2021.

The commencement date of the sentence is a matter for the discretion of the Court but there is no issue that the commencement of the sentence must at least be backdated to that date.

In being mindful of the considerations of totality, as I have, I have determined in the exercise of discretion to backdate the commencement date to 30 July 2021, being the date of entry of the pleas of guilty.”

67. Her Honour’s determination that the sentence ought commence on 30 July 2021 is the subject of the challenge in ground 2.

68. Her Honour said, of the previous sentences imposed:

“… I have necessarily given attention to the offender’s present circumstances, as I am obliged to do. Further, I have necessarily carefully considered the fact that this is the fourth time the offender has been discretely prosecuted and so the third time that he faces a possible custodial sentence to commence at the end or during his current non-parole period, such that he will not be released to parole.

I have spent considerable time considering the fact of the previous sentences, the appropriate sentence to be determined by me, remaining conscious of the previous sentences, and the requirements and constraints of totality. Ultimately, when the sentence is passed and is examined, it should be noted that it has been imposed in full knowledge of the previous sentences and that I have remained acutely conscious of the effect of the sentence to be imposed by me, both its individual effect and its overall effect.

…

I have taken into account the submissions made in respect of the appropriateness of accumulation of sentence and totality. In my assessment, having regard to the nature and number of offences and the fact that there were three separate victims, subject to the constraints of totality, partial accumulation of sentence is appropriate.

I have also kept in mind, as I have stated, the previous sentences including the number of offences, the nature of the offences and the number of victims. That said, the Court is only tasked with sentencing the offender for the offences before the Court, but in assessing totality and whether the sentence imposed is crushing, the Court must balance the totality of the offending. The offender has committed offences on 16 children at six schools over the course of 20 years.”

69. These passages concerning totality are the subject of challenge in grounds 1 and 3.

70. The sentencing judge addressed the applicant’s submissions on post-offence good character, as follows:

“Mr Skinner made submissions in relation to the offender’s otherwise good character. Mr Skinner submitted on behalf of the offender that consistent with the decision in Ryan v R (2001) 206 CLR 267, followed in Bidgood v R [2016] NSWCCA 138, the offender is entitled to some leniency for his otherwise good character.

I have taken the evidence into account. There is some reference in the offender’s own evidence and in supportive references to activities which might be said to bear on the good character of the offender in subsequent years after the offending ceased. It is appropriate to take that evidence into account in the subjective mix of circumstances.

As the High Court made clear in Ryan, while such evidence is to be taken into account, the weight that must be given to the offender’s otherwise good character will vary according to all of the circumstances of the case. In my assessment, there is very limited evidence of otherwise good character in the years after the offences were committed and it is a matter of very little weight indeed.”

[Emphasis added.]

71. The portion of the above passage which is highlighted in bold is the subject of ground 5.

The grounds of appeal

72. It is convenient to address grounds 2 and 5 at the outset, before turning to grounds 1 and 3 (which will be considered together). Ground 4 (alleged manifest excess) need only be determined if none of the other grounds has been made out.

Ground 2: alleged error in fixing commencement date

73. As referred to above, the sentencing judge backdated the sentence to 30 July 2021, which her Honour described as the date of entry of the pleas of guilty.

74. The applicant argued that, if the date of entry of the pleas of guilty was to be regarded as the relevant date for the commencement of the sentence, her Honour was in error in not taking into account the chronology summarised at [50]-[55] above (which the sentencing judge set out in the reasons to explain why the discount for the plea was 10%).

75. The applicant argued that if the commencement date for the sentence was to be backdated to the time of his plea, it ought to have been backdated to 19 March 2021, which was when he alleged that he informed the Court that he would plead guilty to the counts concerning CG and DJ (albeit in euphemistic terms by indicating that these would be “short matters”).

76. Section 47(2)(a) of the Act provides that a court may direct that a sentence of imprisonment commence on a day prior to the day on which it is imposed. Section 47(3) provides that, in deciding whether to backdate, a court is to take into account pre-sentence custody (which must be taken into account under s 24(a) of the Act). Further, back-dating may also be used to give effect to the totality principle, where, as here, at the time of sentencing, the offender is serving a sentence for other offending: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J); [1997] HCA 26.

77. The sentencing judge was plainly aware of the chronology of the proceedings, including related to the entry of the pleas, having set it out in such detail in her reasons. The choice of a commencement date was a matter for the sentencing judge’s discretion. Thus, it was open to her Honour to determine that the sentence ought commence on 30 July 2021, which happened to coincide with the date on which the applicant actually entered pleas for each of the offences, as her Honour recognised. The applicant has not demonstrated any House v The King (1936) 55 CLR 499; [1936] HCA 40 error in this choice. Accordingly, ground 2 has not been made out.

Ground 5: alleged error in giving limited weight to evidence of post-offence good character

78. As set out above, the applicant adduced evidence of his post-offence good character. His character referees spoke of his good works in assisting the church in information technology and helping other prisoners, including with speaking and writing in English.

79. Mr Tehan KC, who appeared with Mr Skinner for the applicant, submitted that the applicant’s post-offence good character comprised:

1. the IT assistance he had provided to the Catholic Church and the assistance, including with English language learning, which he had provided to fellow prisoners within protection; and

2. the 37-year period (from 1985-2022) during which it was said that he had not offended.

80. He submitted that, having regard to these matters (of which (2) was by far the more significant), it was not open to the sentencing judge to find that his post-offence good character was entitled to “little weight”.

81. The weight to be given to particular factors fell within her Honour’s sentencing discretion: Neal v The Queen (1982) 149 CLR 305 at 326 (Brennan J); [1982] HCA 55; approved in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [39] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). Thus, the weight to be given to post-offence character was a matter for the sentencing judge. The weight to be given to character varies according to all the circumstances of the case: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [36] (McHugh J). That her Honour said that it ought be given little weight indicated that it was taken into account (R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing)). This assessment was open to her Honour. For these reasons ground 5 has not been made out.

82. This is sufficient to deal with ground 5. However, it is also necessary to address Mr Tehan’s submission that the sentencing judge (and this Court) should act on the basis that the applicant had not re-offended since 1986. This proposition was said to flow from three matters: first, the presumption of innocence; second, the lack of evidence of any further offences after 1986; and, third, the circumstance that the most recent conduct which had resulted in a conviction related to the offence against JD in 1986.

83. The applicant is entitled to have taken into account as a matter in mitigation that he has no further convictions recorded for conduct after 1986. However, there is a distinction between a lack of further convictions and the positive finding for which Mr Tehan contended that the applicant has not, as a matter of fact, engaged in offending conduct after 1986.

84. The presumption of innocence has an important, but limited, application. It relevantly applies only in criminal proceedings when a person is charged with a criminal offence and is rebutted if the person pleads guilty to that offence or is convicted of that offence. Accordingly, it has no relevant operation in sentencing proceedings.

85. That there is no evidence before a sentencing judge of further offending conduct after 1986 does not mean that the Court ought infer that there was none. The question is to be determined as a matter of onus. If the Crown seeks to advance, for the purposes of sentencing, that an offender has re-offended and, therefore, has poor prospects of rehabilitation or that it is likely that the offender will re-offend, this is a matter in aggravation which must, accordingly, be proved beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). If an offender seeks to be sentenced on the basis that the offender ceased the offending conduct at a particular time, this is a matter in mitigation, which must be proved on the balance of probabilities: The Queen v Olbrich at [27]. If there is no evidence on the topic, the Court may neither sentence on the basis that the offending conduct has continued nor that it has ceased.

86. In so far as Mr Tehan may be taken to have submitted that the sentencing judge ought to have been satisfied that the applicant did not re-offend because he no longer occupied teaching positions after about 1986, I reject the submission as it does not follow. While the positions which the applicant held in boys schools gave him ready access to boys in whom he had a sexual interest (which he tended to act upon), it would be naïve to infer that his demonstrated tendency to act on his sexual interest in boys between the ages of 10 and 15 ceased when he no longer held the positions which enabled him to abuse his authority over the boys and commit the offences. This is particularly the case where, as her Honour found, the applicant’s insight and remorse were limited. In these circumstances, I reject Mr Tehan’s submission that the sentencing judge ought, on the basis of “37 years of post-offence good character”, to have given post-offence character more than “little weight”. First, no such inference could be drawn (especially in circumstances where, for a substantial portion of those 37 years he was on the Child Protection Register or in custody) and, second, it was a matter for her Honour what weight to give to the applicant’s post-offence good character (evidenced by his providing IT and English language assistance), such as it was.

87. It is also noteworthy that the applicant did not remove himself from teaching positions as a result of his tendency. Rather, the Catholic Church removed him from such positions as a consequence of the charge laid in about 1985. Further, the “rehabilitation” in which he engaged at Encompass House was run by the Christian Brothers Order, which paid for psychological counselling for complainants, whose complaints were the subject of charges which were dropped.

Ground 1 (alleged failure to take into account delay)

88. Grounds 1 and 3 are, to some extent, related, since the delay in prosecution of the present offences (which arose from the delay in reporting) led to the applicant being sentenced after he had already been sentenced for several similar offences which were committed over a similar timeframe. However, they are discrete grounds and will be addressed separately

89. In support of ground 1, the applicant relied on the following passage from this Court’s decision in R v Obbens [2022] NSWCCA 109 (Obbens), where Hamill and Dhanji JJ (Basten AJA agreeing) said, at [20]:

“The determination of the sentence for the single offence in the present case gave rise to an important aspect of the totality principle which applies when there is a delay in the prosecution of multiple offences and a fragmentation of the sentencing proceedings. It can be readily accepted that in cases of sexual offending that remain undisclosed for many years, delay will not automatically operate as a mitigating factor. In such cases the offender will often have enjoyed the benefit of a place in the community to which (usually) he was not entitled: see R v Cattell [2019] NSWCCA 297 and the cases there discussed. The situation is, however, quite different where a person is prosecuted and imprisoned for multiple offences and, some time after serving that sentence additional offending is brought to light. The delay between prosecution and imprisonment and a second prosecution is unlikely to be a period in which the offender went about life free from opprobrium. Further, the bringing of a subsequent prosecution, with the potential for a return to imprisonment, is an additional stress and disruption that would not have been suffered had all offending been dealt with together. The result is that a return to prison to serve a separate term of imprisonment is likely to involve a significantly greater punishment than would be the case had the first term of imprisonment been longer as a result of all the offences having been dealt with together.”

90. Mr Tehan submitted that the denial to the applicant for the third time of what would otherwise have been almost certain release to parole on 16 December 2021 was “just as demoralising and crushing as the ‘return to imprisonment’ scenario referred to [in Obbens, which was delivered after the sentence had been imposed].” He contended that her Honour was in error in not taking into account what he described as the Obbens principle.

91. I reject this submission. First, the statements in the passage from Obbens extracted above were observations which were apposite to the facts of the case and ought not be elevated to the status of a “principle”.

92. Secondly, the sentencing judge expressly took into account the loss of parole occasioned by the imposition of a further custodial sentence. Her Honour said, of present relevance:

“Further, I have necessarily carefully considered the fact that this is the fourth time the offender has been discretely prosecuted and so the third time that he faces a possible custodial sentence to commence at the end or during his current non-parole period, such that he will not be released to parole.”

93. While this is sufficient to deal with the “principle” raised by the applicant, I propose to address delay more generally in the context of the present sentence to explain why it is not a factor in mitigation.

94. It is not uncommon for there to be a significant delay in the reporting of child sex offences, with the consequence that an offender may be at liberty for many years following the initial offending, with the opportunity to commit further offences, which, in turn, may not be the subject of charges for decades afterwards. The delay in the present case can be taken to be the consequence of the nature of the offending (sexual abuse of children, in this case, boys), which typically renders the victims loath to report the matter to authorities because of the fear, trauma and shame associated with it.

95. It can be inferred that the applicant’s own conduct, such as his statements to DJ in respect of count 9 (extracted above) about keeping the matter secret, was designed to prevent DJ (and other victims) from reporting the offence. The extent of the applicant’s offending (as revealed by the offences to which he has been charged and pleaded guilty to date) was such that there was always a risk that, when he was serving a custodial portion of a sentence for one set of offences, he would be charged with further offences. That risk remains. I do not regard Obbens as having any particular relevance to the present case since the applicant has been in continuous custody since 7 November 2014.

96. Further, in a case such as the present, it is difficult to see how delay could operate as a factor in mitigation. Indeed, in R v Spiers at [37]-[38], this Court said:

“37    Thirdly, and linked with what I have last said, in his reference to the delay of ten years during which, although not in fear of a knock on the door, the respondent had been troubled by what he had done and the prospect ‘that eventually this day would come’, the judge appears to have regarded being troubled during the period of delay as a matter in favour of the respondent. That is not so. As was said of delay in R v Hathaway [2005] NSWCCA 368 at [43] –

‘… it is only the suspense or uncertainty which follows the intervention by the authorities, including … arrest which is relevant. … Where an offender remains silent hoping that the offences will not be discovered a reduced sentence is for this reason inappropriate: see R v Webster [2005] NSWCCA 110’.

38    To the same effect see R v Shorten [2005] NSWCCA 106 at [19] per James J, Hislop and Hall JJ agreeing –

‘It is well settled that the only state of suspense or uncertainty which will be relevant is any state of suspense or uncertainty experienced by the offender after he has been arrested or after it has been indicated to him by some person in authority that he is likely to be prosecuted for the offence. Any suspense or uncertainty on the part of an offender as to whether his committing of the offence will ever be detected is not to be taken into account. See Kay [R v Kay [2004] NSWCCA 130] especially at paras (30) to (33) and R v Law (Queensland Court of Appeal) (1995) 84 A Crim R 142 at 145 per curiam.’”

97. I discern no error in the manner in which the sentencing judge took into account delay. Accordingly, ground 1 has not been made out.

Ground 3: alleged failure to take into account special circumstances

98. In support of ground 3, the applicant argued that the finding of special circumstances was, in effect, arid, because the ratio between the time spent in custody for all offences of approximately 11 years and 8 months from 7 November 2014 (the commencement of the sentence imposed by Zahra SC DCJ) until 29 July 2026 (the last day of the non-parole period for the sentence imposed by the sentencing judge) and the greatest potential parole period of 3 years (from 30 July 2026 until 29 July 2029) was in the order of 80%. This figure is to be compared with the ratio between the non-parole period (5 years) and the total term (8 years) of 62.5% in the sentence actually imposed by the sentencing judge.

99. The applicant further submitted that, while the sentencing judge had said that she had considered the previous sentences imposed on the applicant and had found special circumstances (leading to an adjustment to the statutory ratio from 75% to 62.5%), her Honour had not, in fact, addressed the effect of accumulation on the adjustment for special circumstances. Mr Tehan submitted that, “[the sentencing judge] was taking it upon herself to craft a total sentence that she considered to be appropriate for all of the applicant’s offences.”

100. The circumstance that the applicant was required to be sentenced on five separate occasions for offences committed between 1966 and 1987 gave rise to an important question of totality and the associated issue of accumulation. The principle of totality requires the total criminality to be considered, not only for the offences for which the offender must be sentenced, but also for those for which the offender has already been sentenced: Postiglione v The Queen at 308 (McHugh J); see also Wu v R [2011] NSWCCA 102; 211 A Crim R 88 at [53] (Giles JA). Further, the sentencing judge is to sentence on the basis that previous sentences imposed for the episode of criminality are correct and is not to attempt to alter them by the sentence imposed: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 (MAK) at [99] (Spigelman CJ, Whealy and Howie JJ).

101. As I said in JL v R [2023] NSWCCA 99 at [129] (Ierace and Sweeney JJ agreeing):

“One of the purposes of the principle of totality is to remove arbitrary matters, such as whether the same judge sentenced the offender for all offences; or whether the offender was sentenced for an earlier offence after having been sentenced for related offences. The totality principle is designed to result in a circumstance that, if all other things are equal, the total sentence imposed on an offender for related offences would be the same irrespective of the time at which the offender was sentenced or the order in which he was sentenced for these offences.”

[Emphasis added.]

102. The sentencing judge was required to take into account the following principles, which are part of a consideration of totality:

1. severity is not linear; thus although a sentence of 7 years might be appropriate for one set of offences and 8 years for another, a sentence of 15 years for the combined offending may be out of proportion to the degree of criminality: MAK at [16];

2. on the one hand, an extremely long sentence may be “crushing” but, on the other, an offender may not be entitled to the “element of mercy in adopting such constraint”: MAK at [17]; and

3. care must be taken to ensure that public confidence in the administration of justice is not undermined by the perception that a discount is given for multiple offending: MAK at [18], referring to R v Knight [2005] NSWCCA 241; (2005) 155 A Crim R 252 at [112].

103. It might be said that there is some tension between, on the one hand, the sentencing judge’s finding of special circumstances pursuant to s 44(2B) of the Act (which resulted in a ratio of 62.5% between the non-parole period and the total term) and her Honour’s omission to refer expressly to the effective ratio of 80% between the effective non-parole period of the overall sentence (which comprised the sentences imposed by Zahra SC DCJ, McLennan DCJ, Armitage ADCJ and the sentencing judge) and the total term.

104. Where a sentencing judge fails to give reasons for setting a non-parole period which has this effect, it can be inferred that the sentencing judge overlooked the effect of partial accumulation: R v Nightingale [2005] NSWCCA 147 at [46] (Tobias JA, Buddin and Hall JJ agreeing); Wakefield v R [2010] NSWCCA 12 at [26]-[28] (Grove J, Simpson and R A Hulme JJ agreeing).

105. But there was no such failure in the present case. The sentencing judge was meticulous, in the passages extracted in [58] above, to emphasise that her Honour fully appreciated the effect of partial accumulation in the sentence to be imposed, having regard to the sentences which had been imposed previously. The sentencing judge expressly adverted to the circumstance that there was a possibility that the applicant would face a “possible custodial sentence to commence at the end or during his current non-parole period”. Further, her Honour also addressed, in the context of totality, the question whether the sentence would be “crushing”. Although the sentencing judge did not refer expressly to the ratio in the order of 80% between the total effective period in custody (11 years and 8 months) and the effective maximum parole period (3 years), it was not necessary that her Honour do so, in light of her Honour’s statements as to her consideration of the effect of the sentence in an individual and overall sense.

106. For these reasons, I am not persuaded that her Honour overlooked the effect of the sentence she imposed on the sentences which had already been imposed. To the contrary, the sentencing judge’s reasons demonstrate that the sentence arrived at was the product of a careful consideration of all relevant considerations, including the actual effect of the previous sentences on the length of the applicant’s custody.

107. As referred to above in the extracted passage from JL v R, the principles of totality may often require some adjustment, at least to the non-parole portion of the sentence to be imposed by reason of sentences previously imposed. However, it does not follow that, in a case such as the present, an offender is entitled to a shorter non-parole period, or to avoid a further custodial term altogether, for the offending for which the offender is to be sentenced, in order to preserve the statutory (or lesser) ratio in an overall sense between the time in custody and the time on parole. It was open to the sentencing judge to refrain from reducing the non-parole period to give effect to the finding of special circumstances in the overall composite sentence. It was sufficient to adjust the ratio solely in relation to the sentence which the sentencing judge actually imposed.

108. Had the applicant been sentenced in November 2014 for all the offences for which he was subsequently sentenced, it may have been that the sentence would have been structured so that he was only required to serve 75% (or some lesser percentage) of the total term in custody. But this circumstance cannot, beyond the requirements of totality, be allowed to constrain the discretion of the sentencing judge to determine the appropriate sentence. Further, as referred to above, the “delay” was a consequence of the nature of the offending and is, accordingly, not a mitigating circumstance.

109. For these reasons ground 3 has not been made out.

Ground 4: alleged manifest excess

110. As none of the other grounds of appeal has been made out, it is necessary to address ground 4. The applicant submitted that the aggregate sentence was manifestly excessive as a consequence of the indicative sentences being themselves manifestly excessive.

111. In support of ground 4, Mr Tehan relied on the following matters:

1. there was evidence that the applicant had shown acceptance of responsibility, victim empathy and remorse;

2. the applicant had not re-offended since 1986;

3. the applicant had engaged in rehabilitation many years ago;

4. the applicant was found to be unlikely to re-offend as his prospects of rehabilitation were good and he had a strong support network on his release from custody;

5. following the commission of the offences, the applicant had continued to work as a Christian Brother (not in a teaching role) and had undertaken good works, including since his imprisonment in 2014;

6. the applicant was, at the time of sentencing, 83 years old and had several significant health issues, including a compromised immune system and substantial loss of kidney function; and

7. the applicant had spent most of his time in custody undertaking employment and helping other prisoners in protection.

112. As to (1), the sentencing judge was persuaded only of limited remorse. As to (2), this has been addressed above. While (3) is true, the context of the applicant’s involvement in rehabilitation tends to diminish the significance it might otherwise have had. The other matters would appear to be relatively uncontroversial.

113. Whether a sentence is manifestly excessive is a conclusion which does not depend on the establishment of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).

114. The indicative sentences may be relevant since they may reveal why an aggregate sentence is manifestly excessive: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40](11) and (12). However, this is not necessarily the case because an excessive indicative sentence may not result in an aggregate sentence which is manifestly excessive: Kerr v R [2016] NSWCCA 218 at [114] (Bathurst CJ, Hoeben CJ at CL and Price J agreeing). An appeal lies only against the aggregate sentence since this is the only sentence which has actually been imposed.

115. For the purposes of addressing the submission that the indicative sentences are excessive, it is useful to compare the starting point for the indicative sentences (before the discount of 10% for the plea of guilty) with the maximum penalty and the assessment of objective seriousness. These are set out in the table below.

Count	Victim	Maximum penalty	Assessment of objective seriousness	Indicative sentence before discount of 10% for plea (rounded down)	Indicative sentence after discount of 10% for plea
1	DP	5 years	Mid-range	3 years, 7 months	3 years, 4 months
5	CG	5 years	Slightly above mid-range	4 years, 2 months	3 years, 9 months
6	CG	5 years	Slightly above mid-range	3 years, 11 months	3 years, 7 months
7	CG	5 years	Slightly above mid-range	3 years, 2 months	2 years, 11 months
8	CG	5 years	Slightly above mid-range	2 years, 11 months	2 years, 8 months
9	DJ	5 years	Mid-range	3 years, 11 months	3 years, 7 months
10	DJ	6 years	Above mid-range	3 years, 4 months	3 years

116. A comparison between the pre-discount indicative sentences, the maximum penalties and the assessments of objective seriousness tends to indicate that the indicative sentences may be too high. However, as referred to above, the only sentence which can be appealed is the aggregate sentence, which was 8 years’ imprisonment with a non-parole period of 5 years.

117. The sentencing judge correctly noted that the applicant had committed offences on 16 children at six schools over the course of 20 years. In referring to the overall offending in this way, her Honour can be taken to have had regard to proportionality, which requires a sentence to be imposed be neither greater nor lesser than the objective seriousness of the crime requires: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ). This does not indicate that her Honour was sentencing the applicant for all of the offending. Rather, her Honour was noting the context of the sentences for which she was to sentence the applicant.

118. Having regard to the maximum penalties, seriousness of the offences, the fact that there were three victims (DP, CG and DJ) and the applicant’s substantial criminal history, which disentitled him to leniency, as well as all the other factors to which her Honour had regard, I am not persuaded that the aggregate sentence, whether as to the total term or to the non-parole period, was manifestly excessive. The harm done to the victims was substantial and involved an egregious breach of trust. The sentence imposed is not outside the range of appropriate sentences, having regard to all relevant factors, including the overall criminality of the offending conduct.

119. For these reasons, ground 4 has not been made out.

Proposed orders

120. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

121. PRICE J: I agree with the reasons of Adamson JA and the orders that her Honour proposes. I also agree with the additional remarks of Beech-Jones CJ at CL.

**********

Decision last updated: 19 May 2023