Robert James Hickman

[2016] NSWDC 383

District Court

New South Wales

Medium Neutral Citation:

Robert James Hickman [2016] NSWDC 383

Hearing dates:

8 September 2016

Decision date:

09 December 2016

Jurisdiction:

Criminal

Before:

Sides QC DCJ

Decision:

The offender is sentenced to an aggregate term of imprisonment of 10 years. Non-parole period of 5 years 25 April 2015 and which will expire 24 April 2020.

Catchwords:

Indecent assault upon person under the age of 16 years – sexual intercourse without consent - Priest exploits trust of 11 victims and their families.

Cases Cited:

Flaherty v R [2016] NSWCCA 118; PR v R [2013] NSWCCA 192; PL v R [2015] NSWCCA 100; Magnuson v R [2013] NSWCCA 50

Category:

Sentence

Parties:

Regina (Crown)

Robert James Hickman (accused)

Representation:

Mr Peach (Crown)

Mr Smith SC (of Counsel)

File Number(s):

2015/126145

Publication restriction:

NON-PUBLICATION ORDER MADE IN RELATION TO ANYTHING THAT MAY IDENTIFY THE COMPLAINANTS

Judgment

1. The Offender Robert Hickman appears for sentence consequent upon his adhering to guilty pleas to a total of 13 offences plus pleading guilty just now to a fourteenth offence on indictment.  Thirteen of the fourteen offences are indecent assaults upon persons under the age of 16 years.  The other offence is a sexual intercourse without consent.  All the victims were under the age of 16 years and, with the exception of sequence 17 and the offence on the indictment, the CANs are not pleaded in accordance with the legislation but they do mention the age of the complainant.  No objection was taken to the terms of the CANs and, although they do not refer to the complainant being under the age of 16, they do refer to the age of the complainant.

2.  He committed the 14 offences upon 11 different victims in a period from 1975 to 2002 [corrected to 1992].  The details of the offences are set out in the Crown Sentence Summary that now does have some writing and highlighting on it, although that does not contain the dates of the offences. 

3. There are a total of ten matters on six different Form 1 schedules the Court took into account when considering deterrence and retribution.  The details of those matters are also set out in the Crown Sentence Summary.  All but two of the offences are indecent assaults on a person less than 16 years old.  The other two are committing an act of indecency and inciting a person under 16 to commit an act of indecency.

4. Sexual intercourse without consent has a maximum penalty of 10 years imprisonment and the indecent assault offences have a maximum of six years imprisonment, with the exception of sequence 15 that has a maximum penalty of four years imprisonment and sequence 17 that has a maximum penalty of seven years imprisonment.  The two offences involving the act of indecency on the Form 1 schedule have a maximum penalty of two years imprisonment.  There are no applicable standard non-parole periods. Whilst all the offences bar the offence of intercourse can be dealt with summarily, that would not be appropriate because of the totality of criminality. 

5.  Because he pleaded guilty at the earliest opportunity, the Court reduced the indicative sentences by about 25% to reflect the utility of his guilty pleas. 

6. The Offender’s guilty pleas relieved the victims of the anxiety of awaiting a trial and giving evidence at a trial or trials, which was a matter that the Court took into account in the Offender’s favour. 

FACTS

THE E FAMILY

7. Three of the victims TE, KE, and DE are sisters who have four brothers.  In 1975 their family lived I Haberfield and they attended a Catholic school where the Offender was a school priest.  He was known to the children of the school as Father Bob.  The Offender was also the assistant priest at the local Catholic Church.  The victim’s family was involved in the local Catholic Church and the Offender regularly attended their home for social functions. 

VICTIM TE

8. On one occasion in 1975 the Offender grabbed the victim TE and sat her on his lap.  At the time the victim TE was about five years old.  He started to play a tickling game with her but then moved his hand down under her t-shirt and rubbed her breast area for approximately 10 seconds.  As he did this he held her with his other hand.  The Offender then moved his hand down into the victim TE’s shorts and inside her underpants where he rubbed the outside of her genital area.  When he did this the victim TE jumped off his lap.  At the time her parents were in the room.  This touching gives rise to the offence, sequence 21. 

9.  Later that year, the Offender was again at the home of the victim TE when he grabbed the victim TE as she ran past him and placed her on his lap.  Again he started playing a tickling game but soon moved his hand under her top and rubbed her breast area.  He tried to place his hands down the victim’s pants but she was able to slip away from him and run to play with the other children.  This gives rise to the offence sequence 22 that is on the Form 1 schedule attached to sequence 24. 

10.  On an occasion in 1976, the Offender took the victim TE and her sisters, victims KE and DE to the Central Coast to stay at a home owned by his mother.  The house had two bedrooms, one of which had a set of bunks. The other had a double bed.  One morning the group was staying at the home, the victims DE and KE were in the top and the victim TE was in the bottom bunk.  The Offender came into the room wearing his pyjamas and climbed under the sheets next to the victim TE.  At the time, the victim TE was lying on her side facing the wall.  The Offender slid his hand under pyjamas top and rubbed her breast.  This gives rise to offence sequence 23 that is on the Form 1 schedule attached sequence 24.

11. After about a minute, he slipped his hands into her pyjama bottoms and rubbed her on the outside of her vaginal area.  As he did this, the victim TE noticed that his breathing became heavier and that he was rubbing around his penis area under the sheets.  The victim TE laid on the bed feeling scared and, after about a minute, her sister DE jumped off the top bunk and said: “What are you doing?”  The Offender said: “Having a cuddle”.  This gives rise to the offence sequence 24.  According to the CAN the victim TE was six years old at the time of this offence.

12. In 1997 when the victim TE was approximately seven years old, her family and the Offender were visiting the family of the victims SD, ND and FD who were neighbours of the victim TE and who also attended the local Catholic Church.  The Offender was sitting at the large wooden dining table with other adults.  As the victim TE ran past him, the Offender grabbed her and placed her on his lap.  Again he started playing the tickling game and soon moved his hand under her t-shirt and rubbed her breast area.  The Offender again tried to place his hand down her shorts but she was able to slip away from him and run to play with the other children.  This gives rise to sequence 25 that is on the Form 1 schedule attached to sequence 24. 

13. The victim TE can recall the Offender placing her on his lap and touching her on at least 10 occasions over a four year period when she was between the ages of four and eight years old.  The Offender regularly engaged in this behaviour with the children.  When the children saw the Offender had a child on his lap, they would come over and pull the child away.

VICTIM KE

14.  In 1975 when the victim KE was eight years old, she and her family were visiting the neighbours being the home of the victims SD, ND and FD.  The Offender was also there seated around the large wooden dining table with other adults.  Food and drink was always available on the table and, when the children came in to get something to eat or drink, the Offender would grab them and sit them on his lap.  On this occasion the victim KE came inside to get something to eat and the Offender grabbed her and placed her on his lap.  The victim KE was wearing a loose t-shirt and stubby length shorts and underwear.  Once on the Offender’s lap, the victim KE was facing away from the Offender and her legs were straddling his which were closed.  The Offender held the victim with one hand and slid the other up under her top and rubbed and cupped her breasts.  He used the hand which held the victim KE across her chest to obscure his hand movement from the view of the adults at the table.  This gives rise to the offence sequence 26.  After about one minute, the Offender slid his hand into the victim KE’s shorts and tried to reach under her underwear but was not able to do so.  Instead he rubbed the victim KE on the outside of her vaginal area through her clothes.  This lasted a few seconds before one of the other children called out to the victim KE to come to play.

15. On another occasion in 1976 when the victim KE was nine years old, she was watching television in the lounge room.  The Offender was sitting on a lounge chair.  Both the victim KE’s parents were also in the room.  When the victim KE walked past, the Offender grabbed her and placed her on his lap.  Again, the victim KE was facing away from him with her legs straddling his which were closed.  The Offender held the victim KE with one hand and slid the other up and under her top and rubbed her breasts.  As he did this the Offender pretended he was playing the tickling game.  After a couple of seconds, the Offender attempted to move his hand towards the victim KE’s vagina but she managed to get off his lap and run away.  These events give rise to the offence sequence 27.

16. On an occasion in 1976 when the victim KE was about nine years old, she and her family went with three other families to the presbytery in Lewisham.  They went there at the Offender’s invitation.  Whilst the children played together upstairs, the adults socialised over refreshments downstairs.  At one point, the victim KE came downstairs and the Offender grabbed her and sat her on his lap.  Again he placed one hand across her chest and the other up her shirt and rubbed her breasts.  He again tried to slide his hand down her pants, but the victim KE was able to get away from him, giving rise to sequence 28 which is on the Form 1 schedule attached to sequence 27.

VICTIM DE

17. On an occasion in 1976 when the victim DE was about 11 years old, she was visiting her neighbour’s house, the home of the victims SD, ND and FD, with her family.  The Offender was also present.  The Offender was seated outside on the veranda.  As the victim DE ran past him, the Offender grabbed her and sat her on his lap.  At the time the victim DE was wearing an orange and pink bikini with a t-shirt over the top.  The victim DE was facing away from the Offender. He tickled her back for a few moments and had one of his hands around her waist and the other he put up her shirt and rubbed her breasts with one finger giving rise to sequence 19 which is on the Form 1 schedule attached to sequence 20.  Whilst doing that, the Offender slid two of his fingers down the front of the victim’s bikini bottom and tried to touch her on her vagina, but the victim DE wriggled off and ran to the rear of the yard.  This gives rise to the offence sequence 20. 

18.  Later in the day, although they did not discuss what the Offender had done with them, the victims DE, TE, KE, GD and SD made a pact that, whenever any of the girls were pulled onto the Offender’s lap, the others would go and pull them off.

THE D FAMILY

19.  As already indicated, the victims FD, SD and ND were neighbours of the other three victims to which the Court has already referred.  Their family lived in Haberfield from 1970 to 1979 and with their family they regularly attended the local Catholic Church where they met the Offender.  The Offender regularly visited their home, often staying for dinner and attending other social events, often with the family of the other three aforementioned victims also in attendance. 

20. In 1979, the victims FD, SD and ND and their family moved to Inverell and then, in 1985, to Coffs Harbour.  The Offender visited them at both of these locations and stayed overnight with the family during those visits. 

VICTIM SD

21. In about 1975 when the victim SD was about nine years old, the Offender attended her home for a social occasion which included the family of the victims TE, KE and DE.  The victim SD spent the day playing in and out of the family pool with the other children. She was wearing a yellow crocheted bikini with an elastic top.  After getting out of the pool on one occasion, she went inside the house where she dried herself and then sat on the Offender’s lap facing the other adults at the table.  It was not uncommon for the children to do this at that time.  Shortly after sitting on the Offender’s lap, he slid his hand under the waist band of her bikini bottom and down between her legs.  He then rubbed her on the outside of her vaginal area for about five to 10 seconds.  This made the victim SD feel uncomfortable so she jumped off the Offender’s lap and went back outside to play with the other children.  This gives rise to the offence sequence 1.  The victim SD did not disclose what the Offender had done to her until she began speaking about it with her family in 2000.  Specifically she told her sister JD about the incident at Haberfield.

VICTIM ND

22. After the family of the victims SD, ND and GD moved to Inverell, the Offender visited them there in about 1982.  When the victim ND was about five years old, she was in the lounge room by herself.  It was a very hot day and the Offender bought her a chocolate flavoured drink from the milkman.  Whilst the victim sat on the lounge drinking her drink, the Offender sat next to her on her right and began to gently stroke ND in her rib area and to tickle her.  He then moved his hands down between her legs and rubbed her crotch area on the outside of her clothing.  When the victim asked the Offender to stop he pointed out to her Moove brand drink and said: “Well move then”.  The Offender then took the victim ND’s hand and placed it on his penis but on the outside of his clothing.  She felt his penis that was erect, pulled her hand back and said: “No I don’t want to play”.  This gives rise to the offence sequence 6.  The Offender continued to interact with her in a jovial manner for a couple of more minutes as if it was all just a game and the victim ND then got up and left the room.  She never told her mother about what had happened to her because she felt silly.

23. After the family moved to Coffs Harbour in 1985, the Offender came to visit them there.  On one occasion shortly after the family moved in the Offender stayed the night and ED cooked a roast dinner. 

24.  During the evening, the victim ND had changed for bed and was wearing underwear and her father’s t-shirt.  The Offender was sitting in the lounge room with the victim’s family drinking beer.  Later that night, the victim ND went to bed.  Usually her father tucked her in, but on this occasion the Offender offered to tuck the children into bed.  The victim ND was in the bedroom she shared with her brother NiD, when the Offender came into the room.  NiD had not yet come to bed.  The victim ND had her bedside light on and she was covered by a sheet and woollen blanket.  When the Offender sat next to her on the bed, he cuddled and tickled her.  The Offender’s cuddles began to linger and then he said: “It’s time to quieten down, I’ll give you a massage”.  Whilst the victim ND was lying on her side facing the Offender, he rubbed her chest and abdomen.  When the victim ND rolled away from the Offender and faced the wall, he rubbed her back and then moved his hand down inside her underwear and rubbed her buttocks.  This gives rise to sequence 9 on the Form 1 schedule attached to sequence 11. 

25. The Offender then moved his hands near the victim ND’s anus and vagina and rubbed the outside of her vaginal area, giving rise to sequence 10 that is on the Form 1 schedule attached to sequence 11. 

26.  The Offender then slipped his finger into her vagina for a short distance.  He gently moved his finger in and out of the victim ND’s vagina about six times.  ND was shocked and did not know what to do.  The Offender had his hands clamped around her bottom in such a way that she could not close her legs together and stop him from putting his finger inside her vagina.  The Offender eventually stopped, patted the victim’s bottom and said goodnight.  This gives rise to the offence sequence 11.  After the Offender left the bedroom the victim ND laid there shocked and unsure what to do until she eventually fell asleep.

27.  When the victim ND awoke the next morning, she realised her underwear was gone. It was later found under the covers at the base of the bed.  When she went to the toilet she felt a sharp stinging sensation when she urinated.  She went to school and confided in a friend DC, telling her the Offender had kissed her and she had severe pain in her vagina.  DC told her to tell her parents what had happened. However, the victim ND did not tell her parents what happened to her at the time.  As an adult the victim ND began to discuss what had happened with her sisters JD and SD.  Ultimately she made a statement to an investigator appointed by the Church.  After making her statement, ND attended a meeting at the Church offices in Sydney.  The Offender and other Church officials were present.  The Offender did not directly acknowledge his actions and only said he was sorry for the way her allegations made her feel. 

VICTIM FD

28. In about 1987 the Offender was visiting the D family in Coffs Harbour.  After a roast dinner held in honour of the Offender’s visit, the victim FD went to bed and heard the Offender saying goodnight to her sister, the victim ND.  The Offender came into the victim FD’s bedroom and told her to lie on her tummy and he would give her a massage.  Although she felt unsure, the victim FD did as she was instructed.  The Offender began by rubbing her shoulders and then worked his way down her lower back.  He then slid his hands under her nightshirt and into her underwear, where he rubbed her buttocks.  FD was shocked and did not know how to react.  The Offender told her to roll over.  FD complied and the Offender rubbed her stomach and breast area.  He then slid his hands into her underwear.  As he moved his fingers towards the outer lips of her vagina she said that she was tired and wanted to go to sleep.  The Offender stopped and removed his hand.  Just as he did so, the victim’s mother ED appeared at the door.  The Offender said goodnight, got up and left the room.  The victim FD’s mother tucked her in and kissed her goodnight.  The victim FD did not tell her parents what the Offender had done to her for many years when she talked about it with them and her sisters.

29. The events described above give rise to the offence sequence 15.

30. The victim FD also attended the meeting at the Catholic Church offices.  She too made a statement to church investigators and was paid $5,000 in compensation.  The facts do not make clear who paid that compensation.  Today, Senior Counsel for the Offender informed the Court that his client paid it.  The DPP was not able to confirm that that was or was not the case, it having no notice that the issue would be raised.  It was the Court who raised the issue about who had paid the compensation.

VICTIM NE

31. The victim NE attended St Joan of Arc School in Haberfield in 1997 [should read 1977].  The Offender became the parish priest at the school that year.  The Offender was much younger than the previous priest and had curly brown shoulder-length hair. He spent time in the playground at lunch and morning tea, hanging out with the children.  The victim NE found him to be fun and modern, unlike other priests. 

32. When the victim NE reached about 11 or 12 years of age, the Offender often came up behind her to cuddle her and rub her breasts.  One of these acts gives rise to the offence sequence 3 that is on the Form 1 schedule attached to sequence 5.  The Offender did this as if it was a game and would spin her around so her dress would lift up.  NE also saw the Offender doing this to other girls in the schoolyard.  Towards the end of 1997 the Offender—

31.  SMITH:  1979, your Honour.

32.  HIS HONOUR:  Towards the end of 1979, the Offender said things to the victim NE such as her breasts were getting bigger, which made her feel embarrassed and uncomfortable.

33.  When the victim NE was in Year 5, the Offender began selecting girls to perform some of the duties usually performed by altar boys.  The victim NE was one of those selected to perform these duties.  The Offender took the victim NE and the other girls he had selected to a room near the altar in the church and asked them to take some items out to the altar.  The Offender called the victim NE back into the room.  When the Offender dropped the green gown he was wearing, he revealed that he was wearing nothing underneath.  As the victim NE entered the room, he turned to expose his erect penis.  He then made out it was an accident and made the victim NE feel as if it was her fault.  She apologised and left the room.  His exposing himself gives rise to sequence 4 that is on the Form 1 schedule attached to sequence 5.

34. After seeing the Offender naked in the church, the victim NE told her mother that the Offender did not wear underwear.  She did not go into any detail about what she saw.  Her mother said that what she had told her was nonsense.  After this, NE did not tell anyone else about what had happened.

35. In 1978 the Offender introduced one-on-one confessions.  Every three months students went to the church and confessed to the Offender.  NE was really anxious about going to confession with the Offender.  When she attended the confession, the Offender sat across from her and held his hands on her lap.  If NE became upset, the Offender cuddled her and sat her on his lap.  On one occasion he slipped his hand down the back of her pants and rubbed and patted the buttocks of NE, which gives rise to sequence 5.

36.  The Offender engaged in similar behaviour once every three months for approximately two years.  On other occasions when the victim NE was in the playground the Offender would cuddle her and often slip his hand down the back of her pants, but not into her underwear.

When the victim NE was in Year 6, she was selected on 12 to 15 occasions to deliver mail to the parish.  This required her and another girl to collect mail from the Offender’s office.  On some occasions when the girls went to the Offender’s office, he was just wearing a dressing gown.  On one occasion when the victim NE went into the office, the Offender was wearing his dressing gown.  He asked the girls to sit down and gave each of them a lolly and some of the sacramental wine to sip.  He also gave them a mint to cover the smell of the wine and then talked to them for ten or 15 minutes before cuddling each of them and sending them on their way.  On some of these visits to collect mail the Offender told the victim NE that she was the closest thing to God and that he loved God’s children.

VICTIM DF

40. The victim DF first met the Offender in 1984 when she was 13 or 14 years old and attended Ephpheta Centre, which provided pastoral care, sacramental services, support and advocacy for deaf and hearing-impaired individuals.  The victim DF attended the centre until she was 15 years old and attended a camp and field trips organised by the centre. 

41. On one of the camps at a beach on the South Coast of New South Wales, the victim DF was playing with friends when the Offender approached her, pointed to her and told her she had ten seconds to run away.  The victim DF thought this was strange and looked at her friends, who all said: “run”.  Thinking it was a game, the victim DF and the other children ran in different directions.  The Offender eventually caught up to the victim DF and grabbed her legs, causing her fall on the ground on her stomach.  The Offender grabbed her, rolled her onto the back and straddled her with his knees in the sand. The Offender grabbed a handful of sand, lifted up the victim DF’s yellow T-shirt and rubbed sand over her breasts in a circular motion.  The Offender did not say anything but smiled as he rubbed sand onto the victim.  This gives rise to the offence sequence 7.  The Offender’s behaviour shocked the victim and she pushed him off her and said: “Stay the hell away from me, stay the fuck away from me.”

42.  The victim DF ran back to her friends and told JP and RW what the Offender had done to her.  These girls stayed close to the victim DF throughout the weekend to ensure the Offender did not approach her again.

43. When the victim DF was 23 years of age and expecting her first child, she attended her then mother-in-law’s home and was surprised to see the Offender there.  She was scared and shocked to see the Offender and asked her husband to stay close.  After this meeting the victim DF told her mother what the Offender had done to her.  Her mother told her to keep it quiet and not to say anything.  It was not until 2014, after a presentation at the Deaf Society, that the victim DF approached the staff at the Ephpheta Centre to make a report.

THE W FAMILY

44. LW and VW have known the Offender through their involvement with the Catholic Church that began in 1972.  They have four children, including the victims AW, JW and GW, who knew the Offender as Uncle Bob.  All of the W children save the victim AW suffer from a rare genetic condition known as myoclonic dystonia.  This condition is characterised by sudden, brief, shock‑like movements and sustained muscle contractions which distort posture.

45. The family lived in Cooma until September 1985, when they moved to Springwood in the Blue Mountains. 

46. The victim AW is the eldest of the girls in the family.  When she was about nine or ten, the Offender took the victim AW and her brother MW on a camping trip to a site near a river.  The victim AW recalled going on at least two such trips.  The group camped in a tent when on these trips.  Each night, after MW had fallen asleep, the Offender asked the victim AW to climb into his sleeping bag for a cuddle and so she could rub his back.  She did as he asked.  During the day the Offender had the children wash in the river.  The children had to strip down and bathe while the Offender washed them.  This made the victim AW very uncomfortable.

VICTIM AW

47. After the family moved to Springwood, the Offender often stayed the night at their house.  On the last occasion the Offender spent the night, the victim AW was in the top bunk of the bunk beds in her room.  The Offender was sleeping in the bottom bunk.  The Offender insisted that the victim AW climb down into bed with him.  She believed that, if she did not do as the Offender asked, he would tell her parents that she was naughty.  She also believed that she could not disobey a priest.  She did as the Offender asked and, in response to his request, rubbed the Offender’s back.  The Offender then rubbed AW’s back and bottom, which gives rise to the offence that is now count 1.

48. This type of behaviour happened regularly on the Offender’s many overnight stays with the family.  The victim AW did not tell anyone about what the Offender had done to her until in 1988—

49. SMITH:  ’98, your Honour.

50. HIS HONOUR:  Sorry, 1998, her younger sister GW disclosed that the Offender had also abused her.

VICTIM JW

51. The victim JW is the second-eldest of the W girls.  She recalls the Offender taking her on a camping trip to the Blue Mountains with her brother MW and sister AW.  This trip was in January of either 1986 or 1987.  She was about eight or nine years old at the time.  The Offender took the children to a secluded campsite near a river.  There was no running water at the site.  They stayed at the site for two days. 

52.  At some point, the Offender called the victim JW into the tent.  When she entered the tent, the Offender was lying there on an air mattress, covered from the waist down only by a towel.  The Offender said: “Let’s play a game.  It’s a treasure hunt.  I have hidden a surprise for you to find.”  The Offender was holding a black marker and used it to draw arrows, line and circles across his chest and stomach.  He directed the victim JW to follow the arrows with her hand.  Each time she tried to stop, the Offender grabbed her hands and put them back on his chest, insisting she continue to rub his chest and stomach.  At one stage the Offender grabbed her right hand and forced it back on his chest and said words to the effect of: “Don’t stop.”  The Offender pushed her hand lower until the towel he was wearing fell away.  The Offender moved the victim JW’s hand over his erect penis and squeezed her hand around it.  He then moved her hand up and down, causing her to stroke him.  The Offender then grabbed her left hand and made her stroke his thigh.  The Offender began breathing heavily and had a smile on his face.  These events give rise to the offence sequence 18.

53. Immediately after the trip, the victim JW developed a fear of the dark.  She began to sneak out of her room at night and sleep on the landing, which was nearer to her parents’ bedroom and had more light than her room.  This fear lasted until she was in her 20s.  The victim JW did not disclosed the detail of what the Offender had done to her until 2009, after her sister GW had complained.

VICTIM GW

54. The victim GW is the youngest of the W girls.  As part of her treatment for the myoclonic dystonia she had to take medication that had a sedative effect on her.  In 1992 the Offender was based in Belmore and resided at the church presbytery.  At this time the victim GW had to regularly attend medical appointments in the city and she and her family would often stay with the Offender.  On one such occasion, on 23 January 1992, the Offender dropped GW’s mother off at her sister’s home.  The victim GW was 11 at the time.  The Offender took her to Red Rooster for dinner.  After they got back to his quarters, she got ready for bed and the Offender had a shower.  When he returned, he asked the victim GW to rub ointment that looked something like Vaseline on his back.  The Offender lay down naked on a towel with his buttocks and back exposed.  The victim GW rubbed the ointment on the Offender’s back as he directed, which give rise to sequence 16 that is on the Form 1 schedule attached to sequence 17.

55. After she washed her hands she took her medication.  The Offender instructed her to sleep in his bed.  The victim GW fell asleep in the Offenders’ bed.  She awoke later when she heard the Offender in the bedroom and then climbed into bed with her.  The Offender began to touch the victim GW.  He then grabbed her hand and held it on his erect penis while he moved her hand up and down.  With his free hand the Offender rubbed the victim’s chest and vaginal area.  This gives rise to sequence 17.

56. At the time the victim GW felt weak and drowsy from her medication and could not physically escape from the Offender.

57. The Offender said to the victim GW: “Don’t tell anyone what happened tonight, because even [if] you do they won’t believe you.  I’m a Catholic priest and you’re just a kid, so they won’t believe you.”  The Offender got up from the bed and did not return until after the victim’s mother had returned from visiting her sister.

58. The victim GW did not disclose what the Offender had done to her, the facts say in 1992, so one assumes it was later that year, when she did disclose it to her singing teacher.  She undertook some counselling and then in 1998 told her parents.  In December 1998 GW made a formal statement of complaint to the Catholic Church.

ARREST

59. The Offender was arrested on 28 April 2015.  He has been in custody since that date.

SUBJECTIVE FEATURES

60. The Offender turned 30 in February 1975, so was about 30 when his offending began and 47 when it ended.  The material about his background is very limited.  There is no evidence that he had the disadvantage of a dysfunctional upbringing.  He has at least one brother and one sister.

61. The evidence does not disclose a problem with liquor or use of illegal drugs.

62. The Offender told Dr Nielssen that he had wanted to be a priest from the age of nine and entered the seminary in 1962, aged 17 and was ordained in 1968.  He has undertaken some further education since, including sign language.  After being in three different parishes, he was appointed as a chaplain to the deaf.  He was stood down as a priest in 1999 after a complaint and having done the Encompass Day Therapy.

63. The complaint as he related it to Professor Blaszcynski was not the one by GW because he told the professor that it involved him hugging them and kissing two girls on the cheek to thank them for their contribution to the service.  However, in the professor’s opinion the Offender’s behaviour at times was inappropriate and he needed counselling: “for the purposes of personal development and recommended he be assessed by Encompass.  The Offender participated in the Encompass Day Therapy Program from 12 March 1999 to 14 September that year.  There is no report from that organisation and no evidence concerning what was involved in the program.  He did sign a contract with the therapist on 14 September 1999 indicating, amongst other things, he would:

• not seek the company of children or be alone with a child; and

• continue therapy on a fortnightly basis, but there is no evidence about what continuing therapy he underwent, if any.

64. The Court notes that there appears to have been some earlier complaint about the Offender’s behaviour because, on 22 December 1993, Professor Blaszcynski wrote to Cardinal Clancy indicating that the Offender had seen him on six occasions over seven months for cognitive behaviour therapy to “manage his aberrant urges”.  The professor reported that the Offender had responded well “coming to recognise the significant impact of his behaviour on others” and claiming he had taken “active steps to ensure he does not place himself in a high risk situation”.  The professor also recorded that the Offender’s superiors were aware of his problems and provided supervision, noting that he saw his spiritual director Brian Yates on a regular fortnightly basis.  Although the professor expressed the opinion that the Offender was no longer at risk of relapse, he recommended at least six-monthly reviews.  There is no evidence of them occurring and no evidence from Brian Yates.  The evidence does not indicate why the Offender saw the professor for cognitive behaviour therapy in 1993, but in exhibit 1.2 dated 23 February 1998 the professor notes that in 1993 the Offender admitted that there had been a sexualised component to his behaviour.  Exhibits 1.1 and 1.2 do not set out Professor Blaszcynski’s qualification, but Dr Nielssen refers to him as a psychologist.

65. After doing the Encompass Program in 1999, the Offender worked as a chaplain at St George Hospital until convicted in 2001.  He then lived with his mother, caring for her in her own home over several years.  Following that, he attended the Aged Care Unit where she was housed, spending several hours with her every day until she died.  He also helped his sister care for her terminally ill husband over seven years.  He also helped aged and frail clergy and worked as a cathedral archivist and, more recently, as a volunteer at the Edmund Rice Centre. 

66. The Court notes that he is relatively physically active and has written four books on his family’s history. 

67. Dr Nielssen refers to him being hearing impaired.  Dr Nielssen gained the impression that the Offender had adjusted to prison and received visits. 

68. Sequences 1, 21, 22, 26 and 27 were all committed sometime during 1975.  It is not clear which of those five offences was committed first.  He had no convictions before 1975.  However, by operation of subs 21A(5A) the Court is of the view that he is not entitled to the benefit of good character for any of the offences committed in 1975 because he exploited the trust the victims and their families had placed in him as a priest to commit the offences. 

69. On 9 September 2001, the Offender was placed on a s 12 bond for 12 months for an indecent assault he committed in November or December 1989.  The victim was 13 years old and, after she approached the Offender, he agreed to teach her sign language.  The offence occurred when he took the victim and her brother to the Central Coast for a weekend to stay at the unit which his mother owned.  After a day at the beach, he rubbed moisturiser on the victim, including on her breasts.  For part of the time he was doing that he had his erect penis pressed against the victim’s side.  The sentencing judge was satisfied that he did not persist after the victim complained.  At the time, the Offender was a local priest at the church the victim and her family attended.  The sentencing judge noted that the victim complained to a counsellor in 1993 about the Offender and his wrongdoing.  It seems that her complaint might have led to the cognitive behaviour therapy the Offender undertook in 1993.  The Court notes that Acting Judge Andrews noted the Offender’s prior good character and had always acknowledged his wrongdoing and had undertaken counselling.  He was satisfied that he would not reoffend.  Sequence 16 that is on the Form 1 schedule and sequence 17 are the only offences committed after that offence.

70. The Offender has been in custody since 28 April 2015 and not breached prison discipline. 

71. In the opinion of Dr Nielssen he meets the criteria for a diagnosis of heterosexual paedophilia but his risk of re-offending is low because of his age and not having contact with children. 

CRIMINALITY

72. Although the Court proposes to impose an aggregate sentence, it considered each offence separately.  He committed the 14 offences on 11 different victims over a period of about 17 years, from 1975 to 1992.  No one offence can be regarded as an isolated aberration.  The Court is satisfied beyond a reasonable doubt that each offence was premeditated in the sense that he had determined to commit them when the opportunity arose and did so for his sexual gratification.  Many of the offences were committed with limited or no planning and all were committed in circumstances where he relied upon his status as a priest to protect him from complaint from any of his victims.  In some cases he committed the offences in the presence of one or more adults.  In those cases the Court is satisfied beyond a reasonable doubt he relied upon the trust those adults placed in him because of his status as a priest to assume he was engaging in innocent play with the victims.  The Offender preyed upon these victims exploiting the trust they and their family had placed in him because of his status as a priest.  His offending behaviour involves a breach of trust of a very high order.  He exploited these 11 victims for the purposes of his sexual gratification. 

73. None of the victims suffered any physical harm because of his offending behaviour.  However, the Court is satisfied that each was traumatised at the time of the offence and it is highly likely that all of them have been left with substantial emotional and/or psychological harm that is likely to remain with them for the rest of their lives.

74. In connection with some offences, the facts do not make clear the duration of the offence.  However, most of them appear to have been of short duration.  He committed a number of the offences in the home of the victim concerned.  In dealing with the criminality of each offence, they were committed in the victim’s home unless the Court indicates otherwise.  The Court does not propose to articulate where in the scale of age each victim falls as it will be obvious upon stating the age of the victim, bearing in mind that the indecent assaults involve offences committed upon a person under the age of 16.

75. The events the subject of sequence 21 involved the Offender rubbing the victim in the area of her vagina inside her pants for about ten seconds when she was only five years old.  It happened after he grabbed the victim and sat her on his lap.

72.  Sequence 24 involved the Offender rubbing the victim’s vaginal area whilst in the victim’s bed with the victim and whilst masturbating.  It appears that this lasted for about a minute and only came to an end when the victim’s sister got off the bed and asked the Offender what he was doing.  It occurred in the home of the Offender’s mother when the victim was staying as an invited guest, obviously with the permission of her parents.  The Court notes that there are three offences on the Form 1 schedule attached to the events the subject of sequence 24. 

73. The offence sequence 26 was committed on the victim KE when she was eight years old.  This was one of the offences committed in the presence of other adults involving a fondling of the victim’s breast on the outside of her clothing and obscuring his offending conduct by holding the other hand or arm across her chest.  He rubbed her breasts for about a minute and then attempted to insert his hand inside her pants but was unable to do so.  He rubbed her on the outside of her pants until other children called her away.  This offence occurred at the home of the victim’s neighbours which was the home of three of the other victims.  As it was the home of her neighbours home, the victim was entitled to feel safe at that house.

74.  He committed the offence sequence 27 when she was nine years old.  This event involved fondling her breasts and attempting to fondle her genital area.  The attempt failed because she wriggled free.  This is another offence committed in the presence of other adults.  On this occasion he pretended he was tickling the victim.  The Court notes there is an offence attached to the Form 1 schedule in connection with this matter.

75. He committed the offence sequence 20 upon the victim DE when she was 11 years old.  This offence occurred in the neighbour’s house where she was entitled to feel safe.  This offence involved attempting to touch her vaginal area with his fingers.  He was not successful in this regard because she wriggled free and ran away.  This offence occurred in the context of him having grabbed her and put her on his lap and touched her breast with one of his fingers.  This gives rise to sequence 19 that is on Form 1 schedule attached to sequence 20. 

76. The Offender committed the offence sequence 1 on the victim SD when she was nine.  He took the opportunity when she sat on his lap to rub her in the area of her vagina for five to ten seconds.  After that, he slipped his hand inside her bikini.  This made the victim feel uncomfortable.  She jumped off his lap and ran away.

77. At the time of the offence the subject of sequence 6, which was committed on the victim MD, she was five years old.  The activity on this occasion started by the Offender rubbing the victim’s legs and crotch area.  When she told him to stop, he put responsibility on her by telling her to move.  The Offender placed the victim’s hand on his erect penis on the outside of his clothing.  She pulled her hand back indicating she did not like it and ran off.  This is the youngest of all his victims. 

78. He committed the offence sequence 11 on the same victim on the same night as the offences sequences 9 and 10 that are on the Form 1 schedule attached to sequence 11.  According to the CAN, the victim was eight years old at the time of the offence.  It involved him inserting his finger into the victim’s vagina for a short distance and then gently moving it in and out six times. 

79. The Offender committed sequence 15 upon the victim FD by fondling her bottom under her clothing while she was in a bed.  He stopped when the victim’s mother approached.  The facts do not indicate the victim’s age but, according to the CAN, she was 13 years old. 

80. The offence sequence 5 was committed upon the victim NE.  It involves similar behaviour but it was in the context of a confessional, either at church or at school and not at the victim’s home.  The facts do not indicate the victim’s age but, according to the CAN, she was 11 years old at the time.  The Court notes there are two matters on the Form 1 schedule attached to this matter.  He committed the offence sequence 7 upon the victim DF whilst they were on an organised camping holiday.  Whilst straddling her, he rubbed sand into her breasts.  The evidence does not reveal if this caused her any pain.  The victim was 15 at the time, making her the oldest of his victims. 

81. The offence count 1, which was previously sequence 13, involved rubbing the victim AW’s back and bottom.  According to the indictment, the victim was either nine or ten years old at the time.

82. The offence sequence 18 involved him forcing the victim JW to squeeze his erect penis and then masturbate it.  There is no evidence he ejaculated.  The victim was eight or nine years old at the time.  This happened during a camping trip.  Whilst the offence itself may have been of short duration, the victim had to touch the Offender where he indicated before he made her squeeze his penis.

83. At the time of sequence 17, the victim GW was 11.  He forced her to masturbate him while she was at his home and no one else was there.  As she was doing that, he fondled her breast and genital area.  This is the offence where he told the victim it was no used telling her, she would not be believed because he was a priest.  The Court notes there is one matter on the Form 1 schedule in connection with this offence.

84. There is material in the evidence that indicates that the Offender is remorseful and suggesting that he has insight.  According to exhibit 1.1, he recognised the significant impact of his behaviour on others in 1993.  Whilst he admitted his involvement in the offence dealt with in 2001, he did not reveal to the relevant authorities any other behaviour that is now the subject of these proceedings.

85. At some stage $5,000 compensation was paid to the victim FD.  The Offender claims that that money came from him.

86. OFFENDER:  Your Honour, I just heard and it’s not correct.  It didn’t come from me.  I was a bit deaf and I couldn’t hear ..(not transcribable).. That money did not come from me.

87. SMITH:  I withdraw my submission.

88. HIS HONOUR:  Yes, all right.

89. As noted previously, the Offender does have a hearing problem and he may not have had the hearing loop in at the time this issue was discussed.  He does have one in now and he has pointed out that there was a misunderstanding, which the Court accepts.  The assumption is therefore that the compensation was paid by the church.  It is an amount that the Court regards as totally inadequate, that failed to acknowledge the harm done and demonstrates a remarkable lack of compassion on the part of the church.

90. The Offender did not directly acknowledge his actions in relation to the victim ND at the meeting with her and the church officials.  This appears to be in contrast with the professor being of the opinion in 1993 that the Offender was coming to recognise the significant impact of his behaviour on others.  It is not entirely clear to the Court when this meeting occurred.  The Court notes exhibit 3, which is dated 30 November 2016, in particular how he acknowledges the victim impact statements brought home to him the full impact of his crimes and it also notes his request that a copy of it be provided to each of the victims.

91. The Court is satisfied that, belatedly, the Offender is remorseful and the conditions in subpara 21A(3)(i) are met.  In the circumstances the Court extended leniency for remorse.

92. There is no evidence that, over a period in excess of two decades since the last offence, that the Offender has committed any further offences.  In all the circumstances the Court is of the view that his prospects of rehabilitation and not re-offending are good.

93. The Offender’s counsel relied upon the Offender’s age.  The Offender will turn 72 early in the New Year.  There is no evidence of any relevant medical health issues and consequently no evidence about life expectancy.  The life expectancy tables prepared by Furzer Crestani Forensic available via the Australian Bureau of Statistics dated 1 October 2016 places the life expectancy for a male aged 72 at 14.2 years.  The Court is satisfied that age will make his time in custody more burdensome because of his vulnerability due to his increased frailty comparative to the bulk of other inmates.  There is reference in the material to him being in protective custody, which the Court has taken into account as well as indicating his time in custody will be more burdensome.  However, in this context the Court notes that there is no evidence indicating the impact upon things such as time out of cells, access to rehabilitation and other programs, visits and phone calls.

94. The Court did consider the cases referred to by the Offender’s counsel but did so noting the need to compare like cases.  R v Murrin [2008] NSWDC 29 was of very limited assistance because:

•  it predates the operation of subs 21A(5A);

•  there were five victims and the offences were committed over a year;

•  the Offender was much younger than this man at the time, being 18 to 19 at the time;

•  that Offender had the disadvantage of a dysfunctional upbringing and had been the victim of sexual abuse whilst a child; and

•  none of the acts involved penetration. 

99. R v Pemble [2015] NSWDC 168 involved one offence upon one victim, with two matters on a Form 1 schedule. Paragraph 20 of his Honour’s judgment indicates that he considered that subpara 21A(5A) was not applicable. The offence was treated as an isolated offence and the Offender was in his early 20s.

100. Flaherty v R [2016] NSWCCA 118 can be distinguished because it involves:

• five counts;

• no Form 1;

• the maximum penalty was five years;

• there were three victims:  one aged between 11 and 13, one aged 14 and the other 15;

• that Offender had health issues and a life expectancy of six to 12 months.

101. PR v R [2013] NSWCCA 192 involved one offence and one matter on a Form 1 schedule. There were a number of other charges of sexual intercourse with a child under ten. PL v R [2015] NSWCCA 100 involved cases with five out of the seven counts having a maximum penalty of ten. Magnuson v R [2013] NSWCCA 50 involved six counts with a maximum of ten years and five counts with a maximum of six years.

102. Those cases are limited in number and of limited assistance.

103. The Court did sentence in accordance with tariffs prevailing at or about the time of these offences, drawing primarily upon its own experience from practice in the criminal law extending over almost 41 years.

104. The Court has taken delay into account, including what the Offender has done in terms of rehabilitation during that time.  There is, however, no evidence that the Offender has suffered anxiety over that extended period of time anxiously waiting and wondering whether the police were about to knock on his door in connection with these matters.

105. Although this is a case where, because of the absence of any further offences for almost a quarter of a century the need for personal deterrence is very limited, the Court must nonetheless reflect general deterrence.  There are other purposes of sentencing.  It is not necessary to refer to all of them, but they include: denouncing his crimes; holding him accountable; and recognising the harm done to his victims.

106. The Court took into account that a custodial sentence is a sentence of last resort.  Totality has been reflected in the aggregate sentence.

107. The Court found special circumstances because of his custody being more burdensome.

108. Robert Hickman, the Court convicts you of the 14 offences to which you have pleaded guilty and taking into account the ten matters on the six Form 1 schedules pursuant to s 53A imposes an aggregate term of imprisonment of ten years to commence on 28 April 2015.  It fixes a non-parole period of five years and orders that your parole eligibility date is 27 April 2020. 

109. Pursuant to subpara 23A(2)(b), after taking into account the relevant matters under pt 3, the indicative sentences are as follows:

• 12 months in the case of: sequence 15;

• 15 months in the case of: sequence 7 and count 1;

• 18 months in the case of: sequences 1; 21; and 26;

• 21 months in the case of: sequence 5, taking into account two matters on the Form 1 schedule; sequence 20, taking into account one matter on the Form 1 schedule; and 27, taking into account one matter on the Form 1 schedule;

• 2 years in the case of: the sequences 6; 17, taking into account one matter on the Form 1 schedule; 18; and 24, taking into account three matters on the Form 1 schedule;

• 3 years in the case of:  sequence 11, taking into account two matters on the Form 1 schedule.

110. Mr Hickman, I have sentenced you to a total sentence of ten years imprisonment and I have fixed a non-parole period of five years.  The sentence commences when the police arrested you.  Your parole eligibility date is 24 April 2020.  I want you to understand, however, that you will not automatically be released to parole on that date.  Sometime before that date the State Parole Authority will hold a hearing at which they will decide whether they are going to release you to parole, or not.  If they decide they will release you to parole, they will fix the date of your release and the conditions of your parole when released.  One condition of parole will be that you must not commit any offence whilst on parole.  There will be many other conditions of parole, including doing as your parole officers direct.  If during the time that you are on parole you breach any condition of parole, the State Parole Authority will revoke that parole and you will have to go back into gaol to serve the balance of the sentence.  Do you understand?

111. OFFENDER:  Exactly, yes.

112. HIS HONOUR:  Thank you.  You may be seated.  Now have I got the dates correct, do you think, gentlemen?  No?

113. SMITH:   No, your Honour.

114. HIS HONOUR:  What have I got wrong?

115. SMITH:  I thought in almost the first line of your remarks on sentence you referred to offending ending in 2002.  If I might, it have been wrong.

116. HIS HONOUR:  If I did it’s some 1990—

117. SMITH:  It was 1992.

118. HIS HONOUR:  Yes.  Eleven different victims from 1975 to 1992.  If I said 2002 or something else it was a slip of the tongue, Mr Smith.  But have I got the dates right?

119. SMITH:  I think so, your Honour.

120. PEACH:   Yes, your Honour.

121.  HIS HONOUR:  Release and that sort of thing.  Now is there any housekeeping, Mr Crown, any ancillary orders or anything of that nature required?

122. PEACH:  No, there is no 166 certificate and your Honour has already taken into consideration the matters on the form.

123. HIS HONOUR:  All right, thank you.  The accused can be taken downstairs, thank you.

124. Well, Mr Crown, I will provide you with a copy of exhibit 3 to determine how that can be forwarded to the various complainants, either though the officer‑in‑charge or through your office.

125. PEACH:  I’ve got a copy.

126. HIS HONOUR:  Or something of that sort.

​

Decision last updated: 21 February 2017