DPP v Toomey [2006] VSCA 90

Court of Appeal (Vic)|2006-04-19|Before: BUCHANAN, VINCENT and NETTLE, JJ.A.

Criminal law - Sentence - Crown appeal - Indecent assaults against boys under the age of 16 years - Teacher committed offences against pupils - Total effective sentence of 27 months' imprisonment and suspension of 21 months' imprisonment for a period of three years manifestly inadequate.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 The respondent is now 56 years old. In 1973, when he was 23 years old, the respondent was a Christian Brother and a teacher at Trinity Regional College in Brunswick. He taught 12 and 13 year old boys in years 7 and 8.

2 In October 2004 a number of charges of indecent assault, alleged to have occurred in 1973 and 1974 against students at Trinity College, were laid against the respondent. A year later, the respondent was arraigned in the County Court and pleaded guilty to a presentment containing ten counts of indecent assault against boys under the age of 16 years. Five of the counts were representative counts. The maximum sentence for the offence was five years' imprisonment.

3 After a plea, the respondent was sentenced to be imprisoned for terms ranging from three months to eight months' imprisonment on the individual counts. With a measure of cumulation, a total effective sentence of 27 months' imprisonment was produced. The sentencing judge ordered that 21 months of the sentence be suspended for a period of three years. The respondent was sentenced as a serious sexual offender on counts 3 to 10. The sentencing judge said, however, that she did not consider the protection of the community required the imposition of a disproportionate sentence.

4 The Director has appealed against the sentence. The sole ground of appeal is that the individual sentences and the total effective sentence are manifestly inadequate. It is also alleged that the non-parole period is manifestly inadequate. There is, however, no non-parole period. The ground is supported by particulars alleging that the sentencing judge failed to take into account or give sufficient weight to aggravating circumstances and matters such as general deterrence, and gave too much weight to mitigating factors.

5 Each count related to an assault against a different pupil. Count 1 was a representative count. The complainant said that the respondent called him up to his desk in order to check his work. The respondent pulled the complainant close to him and gestured for him to sit on the respondent's lap. The complainant did so. The respondent fondled the complainant's penis through his shorts. The complainant became tense. The respondent told him to relax. The complainant felt frightened and vulnerable. The fondling went on for 15 minutes. A similar incident occurred about a week later. When the complainant was seated on his lap, the respondent fondled his penis and testicles, initially over his clothing, and then, moving his hand up the leg of his shorts, the respondent fondled the complainant's penis. The complainant was shocked and moved away. The respondent told him to return to his seat.

6 The complainant recalled another incident a month later, when the respondent slid his hand up a leg of the complainant's shorts and directly touched his penis. The contact lasted five to ten minutes. There were two or three similar incidents, but the complainant could not recall any specific details.

7 Six other complainants spoke of similar assaults. One of them said that when he was sitting on the respondent's knee the respondent rubbed his thigh and moved his hand toward the complainant's penis. The complainant put his hand in front of his penis to block the respondent, but the latter grabbed the complainant's hand and pulled it away with some force, and then proceeded to squeeze his penis and testicles through his shorts.

8 Other complainants described the respondent rubbing their thighs and buttocks and discussing matters such as masturbation and their feelings about girls.

9 A number of the complainants said that the respondent was a disciplinarian who used the strap and that he frightened them.

10 The offences were serious. They were committed by a person who was trusted to care for children and given authority over them. He betrayed that trust and abused that authority. The respondent exploited his position by using his power of corporal punishment to cow his victims and secure their acquiescence in his actions. There were multiple offences involving repeated acts over a period of two years. They were not isolated incidents which might be said to be out of character. The effect of the offences on the victims was described by the sentencing judge as "devastating". The early years of their secondary education were blighted, and their later lives affected. Most of the victims moved away from the Church and encountered difficulties in forming and maintaining personal relationships. Some have suffered diagnosed psychological problems. The courts have recognised that those who commit crimes against one of the most vulnerable groups in society, which almost invariably have long-term effects on their victims, should be severely punished. See Ryan v. The Queen.[1]

11 In sentencing the respondent and suspending all but six months of the sentence, her Honour appears to have been particularly influenced by the respondent's personal circumstances.

12 The respondent had no prior convictions. He pleaded guilty. The sentencing judge found that the plea indicated true remorse for his actions. The respondent had a good reputation. After taking his final vows the respondent taught in a number of Victorian schools and was an active member of the parishes and communities in which the schools were situated. At the time of his sentences the respondent was engaged in palliative care for elderly Christian Brothers. In the course of the plea a number of persons attested to the respondent's good character and his good works. In his submissions in this Court, counsel for the respondent referred to these matters and said that this was, in many ways, an exceptional case. The offences were more than 30 years in the past and the respondent had led a blameless, good life since then. In 2000, the respondent voluntarily entered a program conducted by his order which addressed behavioural problems, including sexual misbehaviour. The sentencing judge accepted that this was "a significant step towards your rehabilitation". Her Honour continued:

"Further, I accept that you have displayed an ongoing commitment to your rehabilitation and have assembled a support group which meets monthly to guide you on the path to reformation."

The respondent was in poor health. According to evidence before the sentencing judge, he suffered from a number of physical ailments and from depression.

13 The sentencing judge gave the following rationale for her decision to partially suspend the sentence. She said:

"By a combination of your youth and inexperience at the time of the offending, that the offending occurred 30 years ago, and that you have voluntarily, albeit recently, undertaken significant reformation to ensure your rehabilitation and thereby reduce the likelihood of re-offending, I am persuaded to the view that it is desirable in the circumstances to partially suspend the sentence of imprisonment."

14 Nevertheless, despite the antiquity of the offences and the respondent's apparently blameless life since then, in my opinion the sentences so devalue the gravity of the offences that it is to be inferred that the sentencing judge fell into error, although no particular error can be identified. I am conscious of the limitations inherent in Crown appeals. They should only succeed in rare and exceptional cases where it is necessary to establish some point of principle. See, e.g., Everitt v. The Queen.[2] In the present case I consider that the sentence represents a manifest inadequacy in sentencing standards. The lapse of time since the commission of these offences is not unusual. Nor is the otherwise blameless life of the offender. The crimes themselves and their consequences demanded a significant sentence. General deterrence and denunciation of the respondent's conduct are of the first importance.

15 I would allow the appeal, set aside the sentence imposed in the County Court and re-sentence the respondent to be imprisoned for a term of one year on count 1, for a term of nine months on counts 2, 3, 4, 5, 6, 7, 8 and 9, and for a term of 15 months on count 10. Eight months of the sentence imposed on count 1 and five months of the sentences imposed on counts 2, 3, 4, 5, 6, 7, 8 and 9 should be served concurrently with each other and the sentence imposed on count 10. That produces a total effective sentence of four years and three months' imprisonment. I would fix a period of two years and six months before the respondent is to be eligible for parole.

16 I agree that this appeal should be allowed for the reasons given by Buchanan, J.A., and I agree in the disposition that he proposes. However, I wish to add two comments.

17 The first relates to the seriousness of the respondent's conduct. The respondent offended against ten separate victims, all of whom were quite young and were not only directly under his control but in a physical situation where they were effectively powerless. In consequence of their youth, personal circumstances and the fear that they might be further singled out as subjects for corporal punishment, they remained silent. The situation, in this respect, can be seen to be similar to many encountered in the courts where there has been the sexual abuse of young persons. Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years. Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards. Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration. Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators. They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.

18 As Hedigan, A.J.A., adopting an earlier statement of Marks, J. in R. v. Sposito[3], put it in R. v. MJ[4]:

"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate."

Referring to the circumstances of the matter before him, he continued:

"The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim."

19 Although his Honour's remarks were made in the context of a case concerning incest, they are clearly applicable to many other situations and relationships and certainly to those presently before the Court.

20 In the present context, there should be no doubt in the mind of any reasonable person that conduct of the kind with which we are here concerned will be regarded as extremely serious, not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally. I need only refer to the changes which have been made to the law and the structures that have been put in place to reduce the risks to children to make this point. The exposure over recent years of the extent of the incidence of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them.

21 The second comment that I wish to make addresses a different aspect. On occasions, when imposing sentence I have made mention of the notion of social rehabilitation. In DPP v. DJK[5], for example, I remarked:

"This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation."

22 It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.

23 Although much has been done in recent years to encourage young persons who have been subjected to inappropriate behaviours to report what has happened, by reason of the presence of a variety of factors it must be anticipated that often the commission of such offences will not be revealed for years and that their eventual disclosure will be both extremely difficult and painful for those offended against, their families and others associated with them.

24 If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences. In my view, this cannot be permitted to occur.

25 It is plain in my judgment from the sentencing judge's carefully constructed sentencing remarks that her Honour recognised the serious aggravating factors which attended the respondent's offending. In my judgment too, however, it is manifest that the individual sentences and total effective sentence formulated by her Honour failed to reflect the nature and gravity of those aggravating factors. One reason for that perhaps may be that her Honour was persuaded to look upon cases in which a Director's appeal has failed as reflecting some sort of sentencing tariff. Plainly they do not.

26 I agree with the learned presiding judge and with Vincent, J.A. that cases such as this case can no longer be regarded as exceptional by reason only that the offending occurred a long time ago and that the offender may since have gone a considerable way towards rehabilitation. Regrettably, such cases occur all too frequently.

27 For the reasons given by the learned presiding judge, I agree that the appeal should be allowed and I agree with his Honour's sentencing disposition.

The formal orders of the Court will be:

The appeal is allowed.

The sentences imposed in the County Court are set aside and in lieu thereof it is ordered that the respondent be sentenced to be imprisoned for a term of one year on count 1, for a term of nine months on counts 2, 3, 4, 5, 6, 7, 8 and 9, and for a term of 15 months on count 10.

Eight months of the sentence imposed on count 1 and five months of the sentences imposed on counts 2, 3, 4, 5, 6, 7, 8 and 9 are to be served concurrently with the sentence imposed on count 10.

The total effective sentence is four years and three months' imprisonment. The respondent is to serve two years and six months' imprisonment before becoming eligible for parole.

It is declared that 134 days are to be reckoned as already served and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

The respondent is sentenced on counts 3 to 10 as a serious sexual offender and it is ordered that that fact be entered in the records of the Court.

It is declared that the respondent must continue to comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 for the remainder of his life.

A certificate under the Appeal Costs Act is granted to the respondent.

[1] (2001) 206 C.L.R. 267 at 283 per McHugh, J.

[2] [1994] HCA 49; (1994) 181 C.L.R. 295.

[3] Unreported, Court of Criminal Appeal, 8 June 1993 at page 4.

[4] [2000] VSCA 66 at [17].

[5] [2003] VSCA 109 at [18].

Offenders Registration Act 2004

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