DPP v Elmer [2021] VCC 146

24 March 1970 Luke aged seven, and his older brother were placed at the St Vincent's boys home. In about 1972, Luke was aged 10 and put in your dormitory, where he remained for two to three years.

7. During this time there was an occasion on an afternoon after school when you went to the yard where Luke and other boys were playing. You gestured for Luke to come to you and took him upstairs to your bedroom. You told Luke to come and sit on your knee and look at pictures in a book that you had of male and female anatomy. Whilst pointing out body parts including a penis, you were masturbating. Your penis was erect and touching against Luke's lower back or buttocks.
8. You continued to do this whilst taking Luke to other pictures in the book. After some time you ejaculated onto Luke's back. You did this in exactly the same way on many occasions. On one of those occasions you ignored his crying until you ejaculated. Luke was too frightened to tell other brothers, some of whom were violent with the boys in their care. That is Charge 2, indecent assault upon a male, a representative count.
9. Your offending was discovered when Blake Reynolds went to the police in 2016 and made a statement. As a consequence police contacted Luke Darwin who also then disclosed your offending. You were interviewed by police on 19 December 2017. You denied assaults on either of them though remembered Luke Darwin given his unusual family circumstances.
10. Victim Impact Statements
11. Both Blake Reynolds and Luke Darwin prepared victim impact statements that were read in court. That of Luke Darwin's was read in court by the learned prosecutor. Both reveal lives haunted by your abuse and the long lasting impact it had on them. In respect of Luke he says, 'I have lived a life of emotional turmoil with constant feelings of shame, fear and psychological scarring to the point of spending most of my life since medicating on illicit drugs and alcohol and the associated traumas of such abuse. In trying to explain within the context of this statement the psychological effects the abuse has caused me I immediately feel both agitated and frightened because this abuse has raged inside of me for 46 years and over that period of time I have not lived my life to its full potential. Always for me this abuse has been in the shadows of my mind and at times when I thought I had left it behind it always has returned.'
12. He reflects on a life of wasted opportunities and remarks that waiting 46 years for closure is a surreal feeling. He says in closing, 'I would like to say the overall effects of the abuse I suffered as a child have manifested in a negative way into all aspects of my life. The road ahead for me will be difficult and the feelings of disgust, grief and anger I hope in time with regular counselling will dissipate and allow me to live my life in peace.
13. Blake Reynolds eloquently sets out the impact of your offending and the damage to him by being placed in the care of an institution run by the Christian Brothers. 'The brothers habitually invaded the personal space of self-identity possessed with a self-entitled moral zeal to assail demands of children, assault the core adolescent nature of childhood innocence placed under their custody.
14. 'Under their management power to mould and shape the futures of grown adults to a moral ideal that was in individual accord with their chaotic designs. This loosely fashioned arsenal of authority by Brother Rex Ignatius Elmer brought to bear empowerment for his own sexual satiety. His twisted interference became a habit of customary privilege that does not stand alone. A social deviancy endowed with a broad rhetorical utility given a role of authority, a big lie will grow many branches.
15. 'We, adolescent boys, were prepondentary aimed at the inequitable goal of labour in most school paid work, our spirits degraded with double jeopardy logic and our bodies a supervised personal space. The boundaries of our sequinary selves were invasively conducted to this proprietary rectitude.'
16. It is undeniable that your offending has caused serious damage to many aspects of both the boy's lives. Their spirituality, trust and capacity to grow and mature into normal healthy young men, a role with which you were entrusted and which you so grossly breached and abused.
17. You are currently aged 76. You were born in Deloraine, Tasmania in 1944, the fourth child from a family of six children. You enjoyed a happy and stable childhood. You and your brothers would often help your father with his truck business.
18. In Form 4 you attended the Christian Brothers school in Launceston having at that stage determined that you wanted to join the brotherhood. The following year you joined Juniorate in Bundoora then entered the Novitiate in Lower Plenty and Bundoora. You completed teacher training at the Christian Brothers Teachers Training College in Box Hill. You commenced teaching in I968 and made his final profession as a Christian Brother in December 1970.
19. Between 1971 and 1988 you taught at several schools throughout Victoria and was principal at some of those. Between 1989 and 1993 you lived in Tanzania and were involved in the establishment of a school. However, during this time formal accusations were first made against you relating to your time at St Vincent's Boys Home. You returned to Australia and ceased teaching.
20. Between July 1995 and January 1996 you attended the Saint Luke Institute in Maryland in the United States of America and underwent intensive inpatient treatment designed to address your offending behaviour. Upon being discharged in January 1996 you signed a 'continuing care contract'. (see Exhibit 5) I note that positive indications were given at the completion of this Course and it would appear that that confidence in you was well founded.
21. You continued working with administrative roles for the Christian Brothers. You currently live in a Christian Brothers community in Brunswick and are retired. You do remain a Christian Brother.
22. As indicated you are currently 76. You suffer from a number of medical conditions and require regular medical care and medication. You previously suffered from colorectal cancer, and underwent a bowel resection. That situation remains to be needed to be monitored. You also suffer from hypertension, anxiety and insomnia, all of which is controlled by mediation. You recently experienced problems with the vision in your right eye which is being reviewed by an ophthalmologist.(see Medical report Exhibit 2)
23. I accept that given your advanced aged and medical conditions that custody will be more burdensome for you.
24. Further, and relevant to this factor is COVID and the impact on prisoners. It has been authoritatively accepted that the COVID-19 pandemic is causing additional stress and concern for prisoners and that it has resulted in lockdown conditions in some of our prisons.
25. Individuals in custody are especially vulnerable to the spread of COVID-19 due to the confined nature of their living conditions. Additionally, your age and health mean that you are more vulnerable that other young men in the prison to COVID contributing to your stress and anxiety.
26. I accept and take into account that the existence of COVID and your personal circumstances will make custody more burdensome for you.
27. You have no prior convictions, however you were before this Court on 12 charges of indecent assault of a male under 16 years. That offending occurred between 1973 and 1975. There were 12 boys, all in your care at

St Vincent's Boys' Home. You were sentenced to a total effective sentence of five years with a non-parole period of three years, four months, by Judge Neesham on 29 September 1998.

28. You were again before this Court and pleaded guilty to an indecent assault of a male under 16 on 31 May 2000. This related to offending between 1975 and 1976. You were sentenced by Judge Kimm of this Court to 18 month's imprisonment. This was to be served concurrently with the previous sentence imposed. You were released from custody in 2002.
29. All of this offending was of a very similar nature to that currently before the Court and occurred around the same time. The existence of these subsequent matters is relevant to the question of totality, a matter I will address later in these reasons.
30. You indicated that you would plead guilty to these matters at an early stage. Delay with the matter proceeding related to other charges in respect of another complainant which ultimately were not proceeded with by the prosecution. It was conceded that this delay was not attributable to you.
31. Your plea is indicative of remorse. You have not challenged the material in the statements of Blake Reynolds and Luke Darwin. Your plea has significant utilitarian value giving the victims comfort with certainty of resolution and not being required to give evidence.
32. The utilitarian value of a plea of guilty is particularly high, given the Court's operations are interrupted by the COVID-19 pandemic and further delays in your proceedings have been avoided.
33. Both counts are representative. It could not be said that the sexual activity occurred on only one occasion in respect of each of the boys. As to aggravating features, both of the victims were of a very young age and were particularly vulnerable by reason of their tragic family circumstances. They had no one to turn to.
34. Both of them were under your care and your offending involved a gross abuse of trust. You are to be sentenced as a serious sexual offender. I accept that the offence to which you have pleaded, which no longer exists, covered a wide range of conduct including acts of sexual penetration, other than penile penetration. In that context, your conduct constituting this offence is not at the highest end of seriousness.
35. These offences were committed over 46 years ago. This is particularly relevant to your rehabilitation prospects.
36. All of your offending occurred prior to 1976 and you worked as a teacher until 1988. No other complainants have come forward. Further you have engaged in offence-specific treatment in the period since your offending.
37. As mentioned, you successfully participated in an intensive rehabilitative program at the Saint Luke Institute in the United States of America and signed a 'continuing care contract' with the Institute upon your discharge from the program. You also completed programs whilst you were imprisoned between 1998 and 2002, including sex offender treatment. it would not, in those circumstances appear necessary for you to engage in any further sex offending treatment programs.
38. Further your advanced age and life circumstances make re-offending highly unlikely. The prosecution conceded that your rehabilitation was complete. In those circumstances, I accept that specific deterrence and protection of the community have a limited role to play in the sentencing exercise.
39. Given your other matters in this Court, totality has a significant role to play given that you are to be sentenced for two offences that occurred within a relatively short time of one another, and also around the time that those other matters were committed. That offending was of a similar nature relating as it did to sexual activity with young boys in your care at St Vincent's Home. I accept that these offences before me could be categorised as part of ongoing conduct or abuse perpetrated by you over that time of approximately two to three years.
40. Additionally the serious sexual offender regime applies and whilst s.6E of the Sentencing Act must be regarded as moderating totality, the principle remains relevant as does proportionality.
41. There is no doubt that general deterrence, denunciation and just punishment are all important sentencing considerations in this case. You took advantage of and contributed to the wretched life that each of these boys endured as orphans. Some 20 years ago Judge Neesham in this Court said of your offending against 12 boys in the same position as Blake Reynolds and Luke Darwin:

'It requires little imagination to put oneself in the place of any one of your victims. Here was an adult, a man in authority, a man of God, doing what they no doubt believed to be their private acts that were intrusive, obnoxious, frightening and wrong. They believed they were helpless. Who could they tell? Who would believe them? It is little wonder that all your victims bear deep emotional scars to this day as is vividly borne out in their statements. I respectfully adopts the words of Her Honour, the trial Judge in R v Dyland when she said, "No sentence I impose nor is it intended to restore to those victims their childhood innocence, nor can I relieve them of the memories of what must have been the torment of their school boy days. How could you as a teacher and as a man of God how could you have not had at the very least an inkling of the risk of devastation for your victim's faith and their joie de vivre caused by your misbehaviour?'

'I must also take into account the need to deter others from acting as you did and the need to satisfy society's proper desire that there be appropriate retribution for those who debase children to gratify their apparent lust.'

1. Those remarks some 20 years later remain. Of course the sentencing considerations must be balanced against matters put on your behalf in mitigation. Your counsel conceded your offending was serious and accepted that a term of imprisonment was the only sentencing option available to the Court. However it was submitted that all sentencing objectives could be met by the imposition of a term of imprisonment that is partially suspended.
2. The prosecution submitted that you should be required to serve a term of imprisonment immediately but that a partially suspended sentence was within range or as was the imposition of a head sentence and non-parole period. If you could please stand?
3. In respect of Charge 1 you are convicted and sentenced to a term of imprisonment of 18 months. In respect of Charge 2 you are convicted and sentenced to a term of imprisonment of 18 months. Six months of the sentence imposed on Charge 2 will be cumulative on the sentence imposed on Charge 1, leaving a total effective sentence of two years.
4. Given the unusual circumstances in your case, particularly relating to delay and your very good rehabilitation prospects I propose to impose a non-parole period reflective of that and impose a nine month non-parole period. Pursuant to the provisions of the Sex Offenders Registration Act you will be required to report for the remainder of your life.
5. I understand in respect of these charges you are a serious sexual offender and that should be noted on the records and finally, pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to these matters I would have imposed a sentence of four years with a minimum of two. Are there any other matters?
6. COUNSEL: No, Your Honour.
7. HER HONOUR: Thank you.