Hoeben CJ, Price J, Campbell J, Peter McClellan AM, Peter McClellan J
Catchwords
[2013] HCA 37
87 ALJR 1022
302 ALR 192
229 A Crim R 337
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 3787 ALJR 1022302 ALR 192229 A Crim R 337
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638[2012] HCA 186 ALJR 208284 ALR 445218 A Crim R 241
CMB v Attorney General for New South Wales (2015) 256 CLR 346[2015] HCA 989 ALJR 407317 ALR 308243 A Crim R 282151 ALD 8
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301(2017) 270 A Crim R 556327 FLR 71
Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 4986 ALJR 36283 ALR 1214 A Crim R 152
Hornhardt v R [2017] NSWCCA 186
House v The King (1936) 55 CLR 499[1936] HCA 40
10 ALJ 22
10 ALJR 202
55 ALR 499
9 ABC 117
Magnuson v R [2013] NSWCCA 50
Mill v The Queen (1988) 166 CLR 59
[1988] HCA 70
83 ALR 1
36 A Crim R 468
Moon v R [2000] NSWCCA 534
[1997] HCA 26
71 ALJR 875
145 ALR 408
94 A Crim R 397
R v Barker [2016] NSWCCA 193
(2016) 77 MVR 448
R v Fidow [2004] NSWCCA 172
R v GWM [2012] NSWCCA 240
R v MAK [2006] NSWCCA 381
(2006) 167 A Crim R 159
R v MJR (2002) 54 NSWLR 368
[2002] NSWCCA 129
130 A Crim R 481
R v MMK [2006] NSWCCA 272
(2006) 164 A Crim R 481
R v Spiers [2008] NSWCCA 107
R v Todd [1982] 2 NSWLR 517
Vaovasa v R [2007] NSWCCA 253
Judgment (31 paragraphs)
[1]
Introduction
This is a Crown appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on Richard St John Cattell ("the respondent") by Grant DCJ ("the judge") on 26 July 2019. The Notice of Appeal was signed by the Acting Deputy Director of Public Prosecutions ("the acting deputy director") on 23 August 2019 and an Amended Notice of Appeal was signed by the acting deputy director on 23 October 2019.
The respondent pleaded guilty to seven charges described by the judge as "historical sex offences from 1968 to 1990." [1] Those offences are:
1. Charge 1: Indecent assault on a male RC between 1 January 1968 and 12 December 1968 contrary to s 81 of the Crimes Act 1900 (NSW). Maximum penalty 5 years imprisonment. No standard non-parole period. [RC H65538230/1]
2. Charge 2: Indecent assault on a male MO between 1 January 1979 and 31 December 1979 contrary to s 81 of the Crimes Act. Maximum penalty 5 years imprisonment. No standard non-parole period. [MO H65584387/1]
3. Charge 3: Indecent assault on a male MO between 1 January 1980 and 31 December 1981 contrary to s 81 of the Crimes Act. Maximum penalty 5 years imprisonment. No standard non-parole period. [MO H65584387/6]
4. Charge 4: Sexual assault category 4, indecent assault of person JM under authority, and under the age of 16 between 1 January 1987 and 31 December 1988, contrary to s 61E(1A) of the Crimes Act. Maximum penalty 6 years imprisonment. No standard non-parole period. [JM H66364548/1]
5. Charge 5: Sexual assault category 4, indecent assault of person JM under 16 years and under authority between 9 June 1990 and 10 June 1990, contrary to s 61E(1A) of the Crimes Act. Maximum penalty 6 years imprisonment. No standard non-parole period. [JM H66364548/4]
6. Charge 6: Sexual intercourse with person PP above 10 years and under 16 years between 1 July 1990 and 20 December 1990 contrary to s 66C(1) of the Crimes Act. Maximum penalty 8 years imprisonment. No standard non-parole period. [PP H67303146/5]
7. Charge 7: Aggravated indecent assault of a person under authority GO between 1 September 1991 and 30 September 1991 contrary to s 61M(1) of the Crimes Act. Maximum penalty 7 years imprisonment. No standard non-parole period. [GO H65584387/7]
The respondent asked the judge to take into account on sentence the following additional matters that had been placed on a Form 1:
1. Indecent act with a male MO between 1 January 1981 and 31 December 1983, contrary to s 81A of the Crimes Act. Maximum penalty 2 years imprisonment.
2. Indecent assault on a male MO between 1 January 1982 and 31 December 1983. Maximum penalty 5 years imprisonment.
The judge acceded to the respondent's request and took these matters into account when sentencing the respondent for charge 2.
The judge had also been asked to take into account a further matter on a Form 1 of indecent assault of a person JM under 16 years and under authority between 1 January 1987 and 31 December 1988 contrary to s 61E(1A) of the Crimes Act. Maximum penalty 6 years imprisonment. When sentencing the respondent for charge 4, his Honour took this matter into account.
After allowing a 25 per cent discount for the utilitarian value of the pleas of guilty that had been entered in the Local Court, his Honour imposed an aggregate sentence of 30 months imprisonment dating from 26 July 2019 and expiring on 25 January 2022 with a non-parole period of 9 months expiring on 25 April 2020.
As an aggregate sentence was imposed, his Honour indicated the following sentences which had been reduced by 25 per cent:
1. Charge 1: 6 months;
2. Charge 2: 6 months;
3. Charge 3: 4 months;
4. Charge 4: 7 months;
5. Charge 5: 8 months;
6. Charge 6: 18 months;
7. Charge 7: 8 months.
[2]
Facts
During the proceedings on sentence, an agreed statement of facts was tendered which the judge incorporated in his sentencing remarks. The Crown also tendered victim impact statements signed by MO and JM. The agreed facts may be summarised as follows:
[3]
Charge 1: H65538230/1: Indecent assault on male, s 81 of the Crimes Act
In 1968, RC was 12 years old and an altar boy at St Therese Church, Lakemba, where the respondent was an assistant priest. The respondent was one of two priests responsible for the training and development of RC as an altar boy.
One Sunday at mass, the respondent invited RC to visit the nearby seminary the following week. RC obtained permission from his mother to go.
On that occasion, the respondent told RC that he had things to attend to at the presbytery (located next door to the church and where the respondent lived) before attending the seminary and asked RC to accompany him. The respondent told RC that they should shower together. RC was uncomfortable but complied. When RC was naked in the shower, the respondent removed his own clothes while looking at RC and talking to him about his (RC's) pubic hair.
The respondent put a towel on the floor and directed RC to lay down on it, which he did. The respondent suggested that they massage each other. He obtained oil and massaged RC while kneeling beside him. The respondent then lay down and directed RC to massage him and while RC did so, placed RC's hand on his penis, causing him to massage his penis until ejaculation. This caused RC to feel sick.
The respondent told RC that it was too late to go to the seminary and perhaps they would do it another day. He told RC not to tell anybody about what happened.
RC told his mother that same day, after she had noticed a difference in his behaviour. RC's mother confronted the respondent the next day and the family ceased attending St Therese Church.
[4]
Charge 2: H65584387/1: Indecent assault on male, s 81 of the Crimes Act
MO became acquainted with the respondent from the age of four years when his family moved to Castle Hill and began attending St Bernadette's Church, where the respondent was the parish priest. Over the years they became close and when MO was eight or nine years old, he asked the respondent to be his "Godparent." The respondent permitted MO to attend church social excursions for children older than him.
In 1979, the respondent moved to St Mathews Catholic Parish in Windsor NSW and arrangements were made for MO (then aged about 10 years) to stay overnight with him at the presbytery during school holidays. The house was also used by another priest who slept in a separate room. One night the respondent instructed MO to sleep in his bed with no clothes on and MO complied. The respondent, also wearing no clothes, lay on his side and put his arms around MO, so that their bodies were pressed together. MO's penis was pressed against the respondent's body. The respondent fondled MO's genitals and kissed him throughout the night. He told MO that he was special and that it was special to be with him in this way. MO spent most of the night unable to sleep.
The following morning, the respondent showered with MO and rubbed soap over MO's body including his buttocks and penis. They washed each other's bodies. The respondent dried MO's body with a towel.
Over the next five years until MO was 14 or 15 years old, he continued to stay with the respondent over school holidays at least twice per year. During each of these occasions, the respondent continued the same behaviour.
[5]
Charge 3: H65584387/6: Indecent assault on male, s 81 of the Crimes Act
In 1980 or 1981, when MO was 11 or 12 years old, the respondent took him on a camping trip to the Cox's River accompanied by a male adult and two other boys. The respondent and MO swam naked in a creek and there, the respondent fondled MO's genitals.
[6]
Form 1 Offence: H65584387/3: Indecent assault with male, s 81A of the Crimes Act
Between 1981 and 1984, when MO was between 12 and 15 years old, the respondent took MO to stay at his place in Mollymook (which the respondent owned jointly with his brother) on four or five occasions. They usually stayed for two nights and each night the respondent required MO to sleep in the same bed.
On one occasion at the Mollymook house, the respondent lay on his back, naked on a towel on the floor and requested MO to massage him. MO rubbed cream on the respondent's shoulders, chest and stomach. The respondent ejaculated on himself and MO.
[7]
Form 1 Offence: H65584387/4: Indecent assault on male, s 81 of the Crimes Act
In 1982 or 1983, when MO was aged 13 or 14 years, the respondent took MO on a trip to the zoo at Dubbo. They stopped overnight in hotels or motels on three occasions. Each night they slept naked together.
At one location, the respondent fondled MO's genitals in bed and in the shower.
[8]
Charge 4: H66364548/1: Indecent assault of person under 16 years and under authority, s 61E(1A) of the Crimes Act
Around 1987 and 1988, when JM was six or seven years old, he attended the school that was across the road from, and associated with, Our Lady of the Rosary Church at St Marys, where the respondent was a parish priest. On occasions, JM and his older brother (about eight years old) sought refuge at the church parish house where the respondent lived, because their mother was frequently physically violent towards them.
One evening, JM and his brother sought refuge from their mother and stayed overnight at the church parish house. The boys slept in beds in a spare bedroom and were otherwise alone with the respondent in the house. The respondent entered the bedroom, put his hand down the front of JM's pants and touched JM's penis. The respondent masturbated himself until ejaculation. He said:
"I'm the father of this parish. Keep this between us because no-one will believe you, don't tell anybody, it has to remain our secret." [2]
[9]
Form 1 Offence H66364548/2: Indecent assault of person under 16 years and under authority, s 61E(1A) of the Crimes Act
A similar incident occurred between 1987 and 1988 when both boys again sought refuge and stayed overnight at the residence. The respondent again entered the spare bedroom where they slept, placed his hand on JM's penis and masturbated himself until ejaculation.
[10]
Charge 5: H6636548/4: Indecent assault of person under 16 years and under authority, s 61E(1A) of the Crimes Act
On 9 June 1990, JM was nine years old. Again, the brothers sought overnight refuge at the respondent's residence and slept in the spare room. The respondent entered the room and pressed his penis against JM's anus. JM felt pain and said: "Stop! It's hurting!" The respondent then pushed his finger against JM's anus and JM continued to call out to stop. The respondent stopped and moved away from JM but remained in the room for a while.
The following day, the respondent contacted the Department of Community Services and both JM and his brother were placed in the care of their grandmother. They never returned to the church or had any further contact with the respondent.
[11]
Charge 6: H67303146/5: Sexual intercourse with person 10 years or over and under 16 years, s 66C(1) of the Crimes Act
PP became acquainted with the respondent through his activity as parish priest at the church associated with her school, Our Lady of the Rosary primary school. In 1988, PP was in year four and attended confession with the respondent on two occasions.
At the end of 1990, PP was 11 years old when the respondent organised for students at PP's school, including PP, to sing in a choir at the respondent's 25th jubilee celebration. The students rehearsed in a community hall opposite the church. On one occasion, the respondent visited the rehearsal. PP used the toilet and when she came out of the cubicle, the respondent was present in the washroom area. He hugged her and said that he had missed her. He lifted her dress, moved her underpants aside and put his finger in her vagina. He told her that she was special and that God will do great things with her. He hugged her before leaving the washroom.
PP had no more direct contact with the respondent.
[12]
Charge 7: H65584387/7: Aggravated indecent assault (under authority), s 61M(1) of the Crimes Act
In October 1991, GO was 16 years old when his school friend died. The respondent offered his services as a priest to provide counselling to GO and other students. The respondent attended a face-to-face counselling service with GO at his high school before the funeral. The respondent conducted the funeral service.
After the service, the respondent approached GO, who was upset. He hugged GO and offered to take him to a church house in Ulladulla to allow him to deal with his grief. The following day, the respondent drove GO to the respondent's house in Mollymook. When they arrived, another vehicle was present and the respondent said they would have to stay in a motel.
The respondent obtained accommodation in the Ulladulla area with two single beds. He purchased some fishing gear and left GO to fish off a wharf for some hours. After the respondent returned, they went to a restaurant and shared a bottle of white wine. While traveling back to the motel room, the respondent asked what GO liked to drink. GO said that he drank bourbon and the respondent purchased a bottle of bourbon and a bottle of coke. At the motel, the respondent poured a bourbon and coke for each of them and continued to pour drinks for GO, who became intoxicated and fell asleep.
GO woke up and found the front button of his jeans was undone. The respondent was lying in the bed behind him with one hand down the front of GO's pants and was touching his penis. The respondent's pants were down and he was pushing the front of his body against the back of GO, who could feel the respondent pushing something against his anus. GO rolled over, pushed at the respondent and said: "Fuck off." The respondent got out of bed immediately. GO noticed that the respondent's pants were down and his penis was not erect. The respondent got back into his own bed. He drove GO home the next morning.
[13]
Some findings by the judge in his Honour's remarks on sentence
The Judge said that s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act") required the court to have regard to the trauma of sexual abuse on children. His Honour considered that MO's victim impact statement demonstrated that MO had been profoundly affected by the respondent's actions and had impacted upon relationships with his parents and siblings, his wife and children. MO had become hyper-vigilant about the protection of his children and had found it very difficult to make friendships.
His Honour turned to JM's victim impact statement and recounted that JM said that the respondent had ruined his life. It affected his life every day and he was in pain. JM had turned to drugs to try and block it out but it still stuck in his head and he has trouble sleeping. JM had been in and out of hospital because of his mental health issues.
After recounting the agreed facts for each of the offences, his Honour assessed the objective seriousness of the offence.
As to the victim RC, the judge said that the agreed facts demonstrated predatory behaviour on the respondent's part in the lead up to and commission of the offences. RC was 12 years of age and the respondent was 28. His Honour found that the respondent used his position as a priest to entice an altar boy to his home attached to the church upon a false promise to attend the seminary. His Honour observed that the offending was not spontaneous as it involved some degree of pre-planning by reason of telling the false story.
His Honour said the physical act of masturbating to ejaculation was of short duration but the respondent's conduct was not as they had showered together, engaged in massaging each other post showering at the respondent's direction and then the offence occurred. The respondent told RC not to tell anyone. His Honour found that the offence was aggravated by the respondent's abuse of his position as a priest to facilitate the offence. His Honour said that it was a serious example of offending.
As to the victim MO, his Honour said that the offences were part of a continuous course of conduct that took place over a number of years commencing when MO was 10 years old. His Honour found charge 2 to be objectively serious. His Honour observed that the offence involved skin to skin contact and genital fondling during the night when the respondent and MO were both laying naked in the same bed. The sexual contact continued the next day.
[14]
The respondent's subjective circumstances
The respondent was born on 28 April 1940 and was 79 years old when sentenced. He did not give evidence in the sentencing proceedings. The written material tendered on his behalf included a report from Dr Gerard Webster, a forensic psychologist, a clinical psychologist's attendance report from Ms Terri Sheldon and a sentencing assessment report.
The judge summarised the respondent's background as reported in Dr Webster's report. The respondent entered St Columbus seminary when he was 17 years old. After completing studies in philosophy over the following three years, he graduated to St Patrick's seminary at the age of 21 years. He studied theology for the next four years.
His Honour observed that "[s]eminary training in this area was notoriously challenging due to its impersonal, regimented and isolated structure." [5]
The respondent was ordained a Catholic priest at the age of 24. He was appointed as the Vicar-General of the Parramatta Diocese in 1990 when he was 50 years old. He resigned from his role as a Catholic priest following the first set of criminal charges then being laid.
His Honour then summarised the criminal proceedings brought against the respondent in 1994, 2015 and 2016 which are detailed at [70]-[78] below. His Honour observed that when the respondent was on parole from 2017 onwards until his next term of imprisonment there were no problems.
The judge noted that the respondent has been diagnosed with Type 2 diabetes, and has irritable bowel syndrome. He is hearing impaired and always requires hearing aids. He has been diagnosed with anxiety and depression and has been prescribed an anti-depressant medication.
When referring to Dr Webster's report, his Honour noted that it was Dr Webster's view that the respondent had a paedophilic disorder that had gone into complete remission many years ago. The judge recounted that Dr Webster said that the agreed facts were consistent with the respondent's stated sexual desire for non-penetrative sexual activity with post- and peri-pubertal boys. His Honour said "there was one stark exception to this and that is the matter of PP." [6]
The judge recounted the respondent's claim that his sexual desire had ceased now that he was in old age. His Honour found that this was consistent with the fact there had been no allegations that the respondent had engaged in sexual activity with a child since he was arrested at the age of 54 years. Although old age had undoubtedly assisted the respondent, Dr Webster believed that the respondent's avoidance of fantasy and contact with children had made a significant reduction in the intensity of his attraction to children. Dr Webster assessed the likelihood of re-offending to be low provided the respondent stayed on track of avoiding contact with children.
[15]
The respondent's prior criminal history
Included in the material tendered by the Crown before the judge was the respondent's criminal history, statements of facts and judges' remarks on sentence for the sentences imposed in 2015 and 2016.
The sentencing remarks of Judge Saunders QC for the 1994 sentence were tendered in this Court.
[16]
The 1994 sentence
On 9 December 1994, the respondent was sentenced at Penrith District Court by Saunders QC DCJ for five counts of indecent assault on a male against one complainant between 1973 and 1975. The offending conduct occurred when the complainant was between 14 and 17 years of age. The respondent was a Catholic priest at Liverpool and the complainant had sought his help after being indecently assaulted by a teacher. The offences involved mutual masturbation for ejaculation.
The respondent was sentenced to an overall term of 3 years 6 months imprisonment with a minimum term of 2 years.
[17]
The 2015 sentence
On 20 February 2015, the respondent was sentenced by English DCJ for two counts of sexual assault category 4, being the indecent assault of a person under the age of 16 between 17 May 1984 and 31 December 1984, and the indecent assault of the same complainant while the complainant was under his authority between 1 January 1987 and 31 January 1987. A further offence of the same nature was taken into account on a Form 1. The complainant had been trained by the respondent as an altar boy at Our Lady of the Rosary Church at St Marys. The first offence occurred when the complainant was 12 years old and the respondent had invited him to stay at his house in Mollymook. While the complainant was in bed, the respondent fondled the complainant's genitals and pushed his erect penis against the complainant. The second offence occurred in 1987 when the complainant was 14 years old and the respondent took him on a holiday to Dubbo. The respondent fondled the complainant's genitals and pushed his penis against the complainant's back. The respondent ejaculated on the complainant.
The maximum penalty for each of the offences being contrary to s 61E(1) of the Crimes Act was 6 years imprisonment.
Judge English sentenced the respondent in accordance with the pattern of sentencing which existed at the time of the offending, being between 1984 and 1988. Her Honour said that she had regard to the principle of totality and there must be a partial accumulation of the sentences imposed. Her Honour found special circumstances being the respondent's age and the fact that his time in custody would be more onerous due to the nature of the offences and respondent's occupation as a parish priest at the time of the offending. A 25% discount for the early guilty plea was allowed.
Her Honour sentenced the respondent to a total term of imprisonment of 2 years and 6 months to date from 20 February 2015 and to expire on 19 August 2017, with a non-parole period of 1 year 6 months to expire on 19 August 2016.
[18]
The 2016 sentence
On 9 December 2016, the respondent was sentenced by Haesler SC DCJ for two offences of indecent assault on a male against one complainant that occurred between 1973 and 1974. At the time the respondent was a parish priest at the church connected to the complainant's school. The respondent's conduct included fondling the complainant's penis; on the second occasion until the complainant ejaculated.
In his sentencing remarks, Judge Haesler observed that the present complaint came from the Royal Commission and the respondent was formally arrested while he was serving the sentences imposed by English DCJ. His Honour noted that these matters were very old offences and observed that when dealing with old offences, the court must show considerable flexibility. [12]
Judge Haesler had regard to Bureau of Crime Statistics covering the period of the offences and the sentencing patterns at the time of the offending. The respondent was sentenced to an aggregate term of imprisonment of 1 year 6 months to date from 10 April 2016 with a non-parole period of 8 months which was partially concurrent with the sentence imposed by English DCJ in 2015. The respondent was released on parole on 8 December 2016 and served less than 4 months' imprisonment solely referable to the offences before Haesler SC DCJ.
[19]
Crown Appeals
The principles relating to Crown appeals pursuant to s 5D of the Criminal Appeal Act were helpfully summarised by Hoeben CJ at CL in R v Barker [13] as follows:
"[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a "limiting purpose" for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is 'plainly unjust' by reason of its manifest inadequacy) for the mere 'correction of error in the individual sentencing proceedings' Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8.
[53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must:
(i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);
(ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);
(ii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).
…
[55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is 'plainly unjust' and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R."
[20]
Ground 1: The aggregate sentence imposed was manifestly inadequate
[21]
Ground 2: The non-parole period was manifestly inadequate
[22]
Argument
These grounds of appeal may be conveniently dealt with together.
In written submissions, the Crown contended that even having regard to the favourable subjective features found by the judge, the aggregate sentence of 30 months for all seven offences was unreasonable or plainly unjust. Further, while not amenable to appeal, the indicative sentences were inadequate and contributed to the manifestly inadequate aggregate sentence.
The Crown submitted that issues of delay and totality did not justify the sentence imposed. There were, the Crown said, a number of pertinent matters that the judge did not take into account in the assessment of delay and totality which resulted in undue weight being placed upon these considerations:
1. The sentence imposed on the respondent did not form part of a continuous period of custody with the earlier sentences. The absence of this factor was said to introduce an element of artificiality to the question the judge posed; that is, what the overall sentence would have been had the respondent been sentenced to all offences at the one time.
2. Certain circumstances in which the respondent was previously sentenced were said to have acted to compound the extent of artificiality in the question posed as to totality. In 1994, the respondent was sentenced as a first-time offender and one whose offences were isolated to one victim (RC) about 20 years prior and without further incident. The Crown pointed out that the respondent had offended against RC about 5 to 7 years prior in 1968 and against GO only about 3 years before being sentenced in 1994. The Crown contended that the respondent would not have been dealt with as leniently had these matters been known.
3. All previous sentences were imposed prior to the enactment of s 25AA of the CSP Act ("s 25AA"). Sentencing courts were required to give effect to, so far as possible, the general sentencing principles as they operated at the time of the offending. The Crown submitted that his Honour's sentencing remarks do not refer to s 25AA(1) at all. Furthermore, his Honour's remarks do not refer to how the judge applied totality principles to the offences occurring both before and after the enactment of s 25AA.
4. The reasons for delay in the present matter were to be contrasted with R v Todd [14] ("Todd") and Mill v The Queen [15] ("Mill"). The Crown argued that in those cases, the delay in sentencing the offenders was beyond control in that it was a product of offences having been committed in different jurisdictions and the inability of the criminal justice system to deal with the matters together whereas delay is a notorious feature of child sexual abuse, owing largely to the reluctance of victims to come forward or an adult to take up the child's cause. The Crown submitted that the respondent could have, but did not, bring these matters to light, notwithstanding the previous opportunities to demonstrate his contrition in being dealt with for similar offences against other victims in the intervening years.
5. The dates of the present offences were such that there was very little overlap with the time periods concerned in the respondent's past sentences. The Crown submitted the only matter before the judge that had some temporal overlap with a previous offence was the offence against JM that occurred in 1987 or 1988, noting that the respondent was sentenced in 2015 for an offence in 1987. Otherwise, the offences before the judge could not be regarded as closely related in time with any of the previous offences. This was to be contrasted, the Crown said, with cases such as Mill, Todd and Porter v R [2019] NSWCCA 117 ("Porter") which dealt with respective periods of offending of six weeks, one month and about one year.
[23]
Consideration
In order to succeed on these grounds the Crown must establish that the judge imposed an aggregate sentence that was below the range of sentences that could be justly imposed for the offences consistent with sentencing standards. "Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence": Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337 at [24].
[24]
Section 25AA of the CSP Act
One of the matters that the Crown submitted indicated manifest inadequacy in the respondent's sentence was that the judge made no mention of s 25AA(1).
Section 25AA was introduced in New South Wales following the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission") on sentencing standards in historical sexual assault cases. [18]
In the second reading speech for the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW), which ultimately enacted s 25AA, the Attorney-General said that s 25AA was inserted to:
"…require courts sentencing for historical offences to apply current sentencing practices and standards and our modern understanding of the trauma caused to children by sexual abuse. The purpose of this new provision is to override the current common law rule that a court must apply the sentencing standards from the time of the offence. In historical cases of child sexual abuse, this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing for these offences in times past. This perpetuates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim." [19]
Section 25AA is in the following terms:
25AA Sentencing for child sexual offences
(1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.
(2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.
(3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).
(4) This section does not affect section 19.
(5) In this section -
child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years -
(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,
(b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,
(c) an offence of attempting to commit any offence referred to in paragraph (a) or (b),
(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c).
[25]
Delay
Another matter that the Crown points to as indicating manifest inadequacy of sentence is how the judge dealt with the delay between the respondent's offending and the time that he was charged.
The offences concern the sexual assault of five children between 1968 and 1991. The evidence before the judge included that there had been no allegations that the respondent had engaged in sexual activity with a child since his arrest at the age of 54 years; the respondent's paedophilic disorder had gone into complete remission; the respondent had taken positive steps towards rehabilitation including regular sessions with a clinical psychologist and the likelihood of his re-offending was assessed to be low.
In the passages quoted at [63]-[64] above, the judge referred to "lengthy delay" often leading to "considerations of fairness to the offender playing a dominant role in the determination of what should be done in the matter of sentence." His Honour said:
"At times this may require what might otherwise be a quite undue degree of leniency being extended to the offender." [28]
After concluding that there had been a voluntary cessation of criminal activity, that specific deterrence was of little or no weight, that there was strong evidence of remorse, contrition and rehabilitation, his Honour said:
"This is a case where there has been a substantial delay in prosecution and the offender is successfully rehabilitated and has refrained from reoffending. Due to the delay and the rehabilitation of the offender considerations of fairness to the offender play a dominant role in the sentence." [29]
It appears that his Honour's consideration of the delay in the case was founded upon the statement of the following principle by Street CJ in Todd at 519-20:
"… [I]t would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. … [W]here 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."
[26]
Totality
The Crown submitted that not only had the judge placed undue weight on the issue of delay but had made the same error when dealing with the issue of totality.
The Crown argued that although the judge was obliged to consider the question of what would the respondent's sentence have been had all the offences been dealt with together, the sentence imposed did not adequately reflect the overall criminality of the respondent's offending.
The respondent contended that this Court should bear in mind that the combined effect of the judge's sentence with his previous sentences was a sentence of 8 years 7 months and 19 days with a non-parole period of 4 years 6 months and 19 days. The respondent brought to this Court's attention the undiscounted starting point of the overall sentence. [36]
Whether sentences were imposed concurrently or consecutively were matters for his Honour's discretionary judgment guided by the principle of totality. [37]
In applying the principle of totality, his Honour correctly recognised that he was required to have regard to the previous sentences imposed for similar offending even though those sentences had expired. After detailing the respondent's sentences in 1994, 2015 and 2016, his Honour asked in the passage quoted at [66] above:
"[W]hat would likely have been the effect of a head sentence imposed if the offender had been sentenced at the one time for all of the offending?" [38]
His Honour was applying the approach adopted by this Court to the principle of totality in Porter, [39] but as observed at [186], the question is not confined to the head sentence but also applies to the non-parole period.
In answering that question, his Honour took into account that there were five victims which would have required a degree of accumulation on each other as well as the other victims of previous offending. His Honour mentioned that implicit in the question was the need to ensure that the total aggregate sentence appropriately reflects (but does not exceed) the overall criminality in the multiple offences.
There can be no criticism of his Honour's statements of principle. It was necessary for the judge to ensure that the aggregation of all sentences (including the past sentences) was a "just and appropriate measure of the totality of criminality involved." [40]
[27]
The residual discretion
The question remains whether this Court should intervene and re-sentence the respondent. There is a residual discretion to decline to intervene even though the sentence is manifestly inadequate. The Crown is obliged to satisfy the Court that the residual discretion should not be exercised. [45]
In Green v The Queen; Quinn v The Queen, [46] the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." Their Honours described the primary purpose of laying down principles as a "limiting purpose" and said at [36]:
"… It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."
Their Honours observed that other circumstances may combine to produce injustice if a Crown Appeal is allowed. Their Honours said at [43]:
"… They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."
The Crown submitted that the following matters militate against the exercise of the residual discretion:
1. There had been no delay in the institution of the appeal;
2. The Crown had not contributed to the manifest inadequacy of the sentence;
3. Although the respondent's eligibility for release to parole on 25 April 2020 was a relevant consideration, it may not be determinative; and
4. Guidance may be provided to sentencing judges in order to achieve a higher level of consistency in sentencing for historical child sexual abuse cases following the commencement of s 25AA of the CSP Act. It may also be regarded to correct the range that might otherwise be thought to apply, because not to do so would grant this Court's imprimatur to an unjust range of sentences.
The respondent submitted that this Court should exercise its residual discretion and decline to interfere with the sentence. Although it was accepted there was no delay by the Crown in bringing the appeal, the respondent, who is 79 years old, referred to his anxiety over a period of three and a half months anxiously awaiting the hearing of the appeal. Furthermore, the respondent had spent two years and four months on bail pending sentence, in circumstances where an eventual term of imprisonment was inevitable, having previously been subjected to three other prosecutions.
[28]
Re-Sentence
In re-sentencing the respondent, I have sentenced in accordance with s 25AA(1) of the CSP Act and had regard to the sexual abuse on children in accordance with s 25AA(3) for charges 1 to 6.
For the purposes of re-sentencing his Honour's findings as to the objective seriousness of the offences and as to the respondent's subjective case have not been challenged. Other than the erroneous findings on delay, rehabilitation and special circumstances as discussed at [127]-[142] and [162] above, I intend to adopt them on re-sentencing the respondent.
Furthermore the discount of 25% for the pleas of guilty has not been in dispute. A discount of 25% will be allowed on re-sentence.
I give modest weight to the respondent's unchallenged evidence of increased stress, poor sleep, anxiety and the difficulties he has experienced in custody as a result of the Crown appeal: Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1; 86 ALJR 208; 284 ALR 445; 218 A Crim R 241.
In sentencing the respondent, chief weight is to be given to general deterrence and denunciation of the respondent's conduct.
In accordance with s 53A of the CSP Act, I will impose an aggregate sentence. In assessing the indicative sentences, I have fixed an appropriate sentence for each offence and considered questions of accumulation and concurrence and totality. My consideration of totality, has included the respondent's previous sentences and the question posed in Porter.
As the question applies to both the head sentence and the non-parole period, [49] I do not confine the question to the head sentence but ask:
"What would likely have been the effect of a sentence imposed if the respondent had been sentenced at the one time?"
The question is posed at the time of sentence and is constrained by the previous sentences imposed. See [156] above. I am mindful that s 25AA is confined to charges 1-6.
The following Table discloses the sentences that would have been imposed but for the aggregate sentence after the 25% discount has been applied: CSP Act s 53A(2)(b).
Charge Number Starting Point (round figures) Indicative Sentence after 25% discount (round figures)
1 8 months 6 months
2 12 months 9 months
(including Form 1 matters)
3 8 months 6 months
4 14 months 10 months 15 days
(including Form 1 matter)
5 14 months 10 months 15 days
6 32 months 24 months
7 10 months 20 days 8 months
[29]
The aggregate term of imprisonment will be 3 years. I find special circumstances being the respondent's advanced age of almost 80 years. A non-parole period of 18 months will be set.
[30]
Orders
Accordingly, I propose the following orders:
1. Crown appeal allowed.
2. The aggregate sentence imposed in the District Court of New South Wales on 26 July 2019 is quashed.
3. In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment of 3 years commencing on 26 July 2019 and expiring on 25 July 2022 with a non-parole period of 18 months expiring on 25 January 2021.
CAMPBELL J: I agree with Price J.
[31]
Endnotes
R v Cattell [2019] NSWDC 504 at [1].
R v Cattell [2019] NSWDC 504 at [34].
R v Cattell [2019] NSWDC 504 at [36].
R v Cattell [2019] NSWDC 504 at [38].
R v Cattell [2019] NSWDC 504 at [50].
R v Cattell [2019] NSWDC 504 at [55].
R v Cattell [2019] NSWDC 504 at [60].
R v Cattell [2019] NSWDC 504 at [62]-[63].
R v Cattell [2019] NSWDC 504 at [64].
R v Cattell [2019] NSWDC 504 at [65].
R v Cattell [2019] NSWDC 504 at [67]-[71].
Citing Magnuson v R [2013] NSWCCA 50 and Moon v R [2000] NSWCCA 534; 117 A Crim R 497 ("Moon").
[2016] NSWCCA 193; (2016) 77 MVR 448 at [52]-[53], [55].
[1982] 2 NSWLR 517.
(1988) 166 CLR 59; [1988] HCA 70; 83 ALR 1; 36 A Crim R 468.
Porter at [54].
[2019] NSWCCA 261.
Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) Executive Summary, 100-2 [Recommendations 76-7].
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 at 7.
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129; 130 A Crim R 481 ("MJR"); Magnuson v R [2013] NSWCCA 50.
R v Gavel [2014] NSWCCA 56 at [110].
Compare R v Muldoon (unreported, New South Wales Court of Criminal Appeal, Hunt J, 13 December 1990) and DBW v R [2007] NSWCCA 236.
(Paper delivered to the Modern Prosecutor conference, 13 April 2017).
Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017).
R v Todd [1982] 2 NSWLR 517
Vaovasa v R [2007] NSWCCA 253; (2007) 174 A Crim R 116
Texts Cited: Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW)
Justice Peter McClellan AM, 'Seeking "Justice for Victims"' (Paper delivered to the Modern Prosecutor conference, 13 April 2017)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018
Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017)
Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017)
Category: Principal judgment
Parties: Director of Public Prosecutions (NSW) (Appellant)
Richard St John Cattell (Respondent)
Representation: Counsel:
Ms E Wilkins SC (Appellant)
Mr D Barrow (Respondent)
Solicitors:
Solicitor for Public Prosecutions NSW (Appellant)
Ryan & Payten (Respondent)
File Number(s): 2017/00073102; 2017/00370653; 2017/00370870; 2018/00086112
Publication restriction: Statutory prohibition on publication in relation to identities of the complainants under s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Crime
Citation: [2019] NSWDC 504
Date of Decision: 26 July 2019
Before: Grant DCJ
File Number(s): 2017/00073102; 2017/00370653; 2017/00370870; 2018/00086112
The judge considered that the offending involved planning by the respondent who invited the victim to stay overnight in the presbytery and was prolonged. His Honour noted the concession by the respondent's counsel that this offence was the most objectively serious of the offences that were committed on MO. An aggravating feature of the offence was that it involved a breach of trust.
When assessing the objective seriousness of charge 3, his Honour said that MO was aged between 11 or 12 and the respondent fondled the victim's genitals while swimming. Although there was some degree of pre-planning by taking MO on the camping trip, the offending was opportunistic and involved touching for a short period of time. His Honour found that the offending involved a breach of trust which was an aggravating feature but considered the offence to be objectively less serious than charge 2.
As to the Form 1 offences of an indecent assault, his Honour said that the offences occurred when MO was aged between 12 and 15 and involved sexual touching, the respondent masturbating his penis to ejaculation and the fondling of the victim's genitals in bed and in the shower. His Honour found that the respondent abused his position as a priest and the influence that he had over MO to commit the offences.
As to the victim JM, the judge said that the respondent's offending against JM commenced when he was aged six or seven years, the respondent then being 47. His Honour said the age differential was significant and the victim was "at the lower end of the bracket of under 16 years." [3] The respondent masturbated his own penis to ejaculation which had occurred after the respondent had touched the victim's penis while he was in bed. The offending was of short duration. His Honour found the offence (charge 4) to be objectively serious offending. His Honour observed that the Form 1 offence involved similar conduct occurring while JM was the same age when staying at the respondent's house.
When referring to charge 5, the judge noted the respondent's counsel's concession that this was the most objectively serious of the offences involving JM who was nine years of age. The respondent pressed his penis against JM's anus. It involved pain to the point where JM called "stop it's hurting." [4] The respondent did not stop, he then pushed his finger against JM's anus. JM continued to call out "stop." His Honour observed that although the offending had a degree of persistence, it was of short duration. His Honour recognised that the respondent's breach of trust was an element of the offence and did not take the abuse of trust into account as a separate aggravating feature.
As to the victim PP, the judge noted that at the time the respondent committed charge 6, the respondent was 50 years old and PP, who attended Our Lady of the Rosary Primary School, was 11 years old. His Honour said that the offending was predatory and opportunistic but was of short duration. The respondent took advantage of choir practice preparing for the celebration of 25 years since his ordination as a priest. His Honour said that the offence involved digital penetration which was the most serious of all the conduct admitted on his part. His Honour found that in this case the digital penetration was objectively less serious than penile/vaginal penetration.
As to victim GO, the judge observed that GO was 16 years old when the respondent committed charge 7. His Honour noted that the respondent's breach of authority could not be taken into account as a separate aggravating feature as it was an element of the offence. However, it was relevant in assessing the objective seriousness of the offending. His Honour said that the respondent used the victim's vulnerability who was grief stricken following the death of a school friend.
His Honour found the offence to be calculated and planned and the respondent had used alcohol to facilitate his offending. His Honour observed that the offence, while involving skin to skin contact, did not involve coercion or conduct over a long period of time. His Honour found the offending conduct to be objectively serious.
The judge said that the respondent had been undergoing regular sessions with Ms Sheldon, a clinical psychologist. Ms Sheldon had seen the respondent for 16 sessions since 22 March 2017. His Honour noted that Ms Sheldon reported that the respondent had repeatedly expressed extreme and consistent remorse and shame about his sexual behaviour towards young people and had persistently indicated concern for their wellbeing.
When referring to the sentence assessment report, his Honour noted the respondent's discussion of his shame at thoughts of offending behaviour, his regret for his actions and acknowledgement of the harm caused. His Honour said that the respondent had been assessed "at a T3 medium low risk of reoffending." [7]
His Honour accepted that the respondent had shown genuine remorse and contrition in relation to his offending.
The judge went on to consider "delay," saying:
"[62] Lengthy delay will often lead to considerations of fairness to the offender playing a dominant role in the determination of what should be done in the matter of sentence. At times this may require what might otherwise be a quite undue degree of leniency being extended to the offender. The offender has not reoffended since the last offence in 1991. The Court is entitled to consider that this constitutes a voluntary cessation of criminal activity.
[63] In this matter specific deterrence is of little or no weight. There is strong evidence of remorse, contrition and rehabilitation. This is a case where there has been a substantial delay in prosecution and the offender is successfully rehabilitated and has refrained from reoffending. Due to the delay and the rehabilitation of the offender considerations of fairness to the offender play a dominant role in the sentence." [8]
His Honour then referred to the sentences imposed in 1994, 2015 and 2016. His Honour said:
"[64] In 1994 he was dealt with for similar offending and was sentenced to a term of three years and six months with a non-parole period of two years. On 20 February 2015 English DCJ sentenced the offender to two years and six months with a non-parole period of one year and six months. She set a parole date of 18 August 2016. On 9 December 2016 Haesler SC, DCJ dealt with the offender for a number of offences including fondling of penis involving alcohol, hugging, rubbing, manipulating penises and ejaculation." [9]
In relation to Judge Haesler's reasons on sentence, his Honour said:
"[65] The sentences were made partly concurrent with the sentences imposed by English DCJ. His Honour took a fairly flexible approach to ensure that the offender was punished for the totality of his offending. He also structured the sentences to recognise delay and the impact of delay upon the offender. His Honour said at p 5 of the sentencing remarks, "It has enabled him to demonstrate he can lead a law abiding life in the community and this warrants a lesser sentence." His Honour referred to Magnuson [2013] NSWCCA 50 and Moon v R [2000] NSWCCA 534. His Honour also tried to balance the sentences imposed for the other matters. His Honour imposed an aggregate sentence of one year and six months. The offender was released immediately. The sentence meant that he served four months detention for the offences before his release." [10]
When considering totality, his Honour said:
"[67] It was submitted on behalf of the offender that had these offences been reported to police between the commission of the offences and the sentence proceedings in 2015 and 2016 the current sentencing matters could have formed part of an aggregate sentence. There is force in that submission.
[68] The question I need to ask is, "what would likely have been the effect of a head sentence imposed if the offender had been sentenced at the one time for all of the offending?": Porter v R [2019] NSWCCA 117.
[69] I take into account in answering that question that there are five victims here which would have required a degree of accumulation on each other as well as the other victims of previous offending. It would appear that that was the approach adopted by Haesler SC DCJ. Implicit in the question is the need to consider the principle of totality of criminality which requires a judge to ensure that the total aggregate sentence is derived through a process of accumulation or concurrency of individual sentences so it appropriately reflects (but does not exceed) the overall criminality in multiple offences.
[70] The issue relates to the assessment of both the total term and the non-parole period.
[71] I have taken into account past sentences imposed on the offender and the question what would the sentence have been if these matters were dealt with at that time. There must be some period of imprisonment over and above the terms previously imposed but in so doing I am cognisant of the principles of totality." [11]
His Honour found special circumstances on the basis of the respondent's age and his prospects of rehabilitation. The statutory ratio between the balance of term and the non-parole period was varied to 30%.
The Crown put to this Court that the overall criminality of the present offences was much greater than the previous ones. The present offending involved an additional ten offences against five different victims, with one of the acts involving digital penetration and another involving pushing the penis and finger against the anus of a nine year old boy, such that it caused him pain. The Crown pointed out that three of the five victims were aged 11 years or under at the time of the principal offences and in one case, the victim was six or seven years old. This offending commenced five to seven years earlier and finished four years after the offences for which the respondent had already been sentenced.
The Crown said that the present matters increased the number of charges that the respondent faced from ten to twenty, the period of offending from 14 years to 23 years, the number of victims from three to eight and the youngest victim from 12 years to six or seven years. The Crown pointed out that for this significantly additional offending, the respondent received an additional 9 months in custody and overall an additional 30 months.
In submissions on the second ground of appeal, the Crown argued that in taking into account the respondent's "prospects of rehabilitation" in finding special circumstances, the judge engaged in impermissible double counting as it had been taken into account in determining the head sentence. Furthermore there was a finding that the respondent had already been rehabilitated. Moreover, more than 9 months imprisonment was required to reflect the objective gravity of the offences and the need for general deterrence, denunciation and recognising the harm done to the victims and the community.
In oral argument Ms Wilkins SC who appeared for the Crown submitted that care needs to be taken not to expand the totality principle to the point where it becomes almost meaningless. Ms Wilkins referred to an example away from the case of a bank robber who perpetually robs banks over 20 to 30 years and theoretically asked 'do you have regard to the total time served for bank robbery, then reduce the overall sentence and not increase it? Should one who continues to rob banks receive increasing reductions in sentence on a totality basis?' Ms Wilkins submitted that this is contrary to the principle that people who continually offend should have increased sentences.
Ms Wilkins further put to the Court that although the judge has referred to s 25AA in his sentencing remarks, his Honour had not referred to s 25AA(1) which was the crucial provision. Ms Wilkins accepted that s 25AA(1) did not apply to the victim GO who was over 16 years at the time that he was sexually assaulted.
The respondent's primary submission was that when regard was had to the four separate prosecutions since 1994 and that he has been sentenced to serve a combined total term of imprisonment of 8 years 7 months and 19 days, with a non-parole period of 4 years 6 months and 19 days, this Court would not conclude that the aggregate sentence imposed by the judge was manifestly inadequate. As the respondent had pleaded guilty at an early stage for all offences and after a 25% reduction for the early guilty pleas had been factored in, the respondent submitted that the starting point of the overall term would be just over 11 years 5 months with a non-parole period of just over 6 years.
The respondent pointed out that the offending in the proceedings before the judge spanned a period between 1968 and 1991. The delay in this case had two explanations; the respondent's failure to confess that he had sexually molested a series of children in the time he had been a priest, together with the time it often takes for child victims of sexual offending to complain to the authorities.
The respondent submitted that a notable feature of his case in 2019 was the evidence of his rehabilitation. The respondent referred to his non-offending since 1991, his participation in a "small group program" in the Cooma Correctional Centre in 1994, the regular sessions he had with Ms Sheldon from March 2017 until he was sentenced by the judge and with Dr Webster from July 2019. The respondent referred to Dr Webster's opinion that his psychosexual history did not support the diagnosis of paedophilic disorder but such a disorder had "gone into complete remission many years ago."
A further consideration on the issues of delay, the respondent argued, was that this was the fourth time he had experienced the stress and anxiety of being the subject of a prosecution for a serious offending that had a likely outcome of full-time imprisonment. Another consideration commented upon by the judge was that the respondent had been on bail for the 2019 proceedings for a period of 2 years 4 months.
The respondent submitted that in all the circumstances delay was capable of ameliorating the respondent's sentence because of his rehabilitation, established low risk of future offending, and demonstrated remorse.
On the issue of totality, the respondent argued that Porter was similar to the circumstances in the present appeal. In that case, the offender had committed three serious sexual assaults in 2001, however had been arrested and sentenced in 2002 and 2003 with regard to only two of the offences. He had served those sentences and been released on parole in 2012. In 2015, the victim in the third, unsolved offence approached police and requested that the offence be investigated. The offender was linked by DNA and sentenced in 2018. The respondent cited Porter where it was held by this Court that totality was a relevant consideration. [16]
Whilst the reasons for delay in the present appeal could be contrasted with Todd or Mill, the respondent argued that totality still applied.
The respondent submitted that the judge had not disregarded s 25AA as he had expressly referred to s 25AA in his sentencing remarks. Furthermore, s 25AA had been referred to in written submissions by both parties and in oral discussions in the sentencing proceedings.
In response to the Crown's submissions that it could not be said that the aggregate sentence reflects current patterns and practices in relation to sentencing for child sexual offences, the respondent argued that the Crown had not detailed "the current patterns and practices" and contemporary equivalent offences now had much higher maximum penalties and standard non-parole periods.
The respondent cited O'Sullivan v R [17] ("O'Sullivan") as being of assistance in determining whether the judge's sentence is manifestly inadequate.
In summary, the respondent said that the aggregate sentence imposed by the judge was neither unreasonable nor plainly unjust given the unusual features of the matter. The four discrete sets of prosecutions, the lengthy period on bail in the 2019 matter, the respondent's consistent remorse, his concerted attempts at rehabilitation, the absence of offending for approximately 28 years, his advanced age and the related nature of the offending were submitted to be good reasons for the judge to extend "what might otherwise be a quite undue degree of leniency."
In oral submissions, Mr Barrow for the respondent pointed out that, on the question of totality the judge followed the Crown's submission that his Honour should look at the respondent's criminality globally taking into account the sentences that he had already received and come to a view as to the total sentence that would have been imposed had the respondent been dealt with for all the offences at one time.
On the second ground of appeal, the respondent submitted that it was apparent that the nominated non-parole period was the additional period the judge considered the respondent should spend in custody. The respondent argued that had the sentence been imposed earlier, it was evident from the judge's approach that the non-parole period would have been significantly longer, but backdated so that the last 9 months of the non-parole period was to be served solely for the subject offences. However, the circumstances of this matter did not allow for the sentence to be backdated.
Seen in this light, it was submitted that the judge's approach to the non-parole period was within the scope of his sentencing discretion.
Prior to the introduction of s 25AA(1), a judge sentencing a person for offences committed many years before the date of sentencing was obliged to take into account the sentencing patterns that existed at the time of the offences. [20]
Following the commencement of s 25AA(1), a sentencing judge must sentence an offender for a child sexual offence as defined in s 25AA(5) in accordance with "the sentencing patterns and practices" at the time of sentencing, not at the time of the offence.
It is well known that the understanding by judges of the harmful effects of sexual offences against children has developed over the years. The long-term serious harm that could be caused to children was not well understood at the time when many historical sexual offences were committed or offenders were sentenced. The change in understanding was remarked upon by Mason P in MJR in 2002 at [57]:
"The premise upon which the issue of principle comes to be decided in the area under consideration (penalties for child sexual assault) is that the pattern of sentences has increased. I suspect that there has been an increase, although there is no hard data. If I am right, this putative increase has come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes. These reasons - and there may be others - indicate to me that, in the present context, a sentencing court should prefer today's attitudes to the laxer patterns of previous years."
Justice Peter McClellan AM in his speech 'Seeking "Justice for Victims"' observed:
"Judicial assumptions have also played a role in the sentencing of offenders who have been convicted of sexual offences against children. These include assumptions about the harm caused by sexual offending.
In New South Wales it is now accepted that:
"…child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 39; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". [21]
This position is the product of a shift in judicial understanding. From the early 2000s the decisions of the New South Wales Court of Criminal Appeal reveal a greater willingness on the part of judges to assume that harmful consequences result from child sexual abuse. [22] This has been accompanied by increased severity in the sentences for these offences." [23] (Citations in original.)
I have no doubt that the understanding of the harmful effects of sexual offending against children has increased since the Royal Commission delivered its Criminal Justice Report in 2017. [24]
The sentencing proceedings took place before the judge on 25 July 2019. Written submissions had been provided to his Honour that included submissions on s 25AA(1) and (3) of the CSP Act. In oral submissions, the Crown drew s 25AA to his Honour's attention and the following exchange took place:
"CROWN: … When we talk about s 25AA we are talking about sentencing on the basis of our current understanding of the impact that these offences have.
HIS HONOUR: Yes. It seems to me that when you look at that and I've had to deal with a number of these matters already in my short judicial career but to date nobody from the Crown has been able to show me sentences or statistics which can be viewed then in light of s 25AA. Now that might happen in five or six years' time but at the moment I know I am required by parliament to sentence in relation to current standards and principles but there is just simply nothing statistically to assist a judge in coming to that conclusion.
CROWN: Your Honour, yes. In my submissions I wouldn't normally quote another District Court judge but I have put one in there because it alludes to that very point really. Your Honour, to some extent, is starting afresh: everything past you ignore and you start afresh. And that adds to the complexity as well. We accept that.
HIS HONOUR: Well you say everything is pushed aside and I start afresh, that's not entirely right because the starting point has to be what is the statutory maximum because that is the guidepost and which I - and I say in a lot of my judgment I must steer by but not aim for.
CROWN: Your Honour, I think the significant factor in relation to 25AA rather than those previous cases and how your Honour is to look at them is in relation to - and it's mentioned in my learned friend's submissions about victim impact statements and how your Honour should view them - I think the importance of s 25AA in relation to victim impact statements is that some years ago if you had seen a victim impact statement in the terms that you see those current ones you would have said that is over and above what you would expect in a normal case of this nature. I think now because of our understanding of the way these types of offences traumatise people that it is almost within the normal expectation that at least some of the people suffering these offences will have life-changing and debilitating mental illness.
HIS HONOUR: Mr Marney, if you ever do read Van Ryn, which is on Caselaw, you will see in that judgment - and I will be including it in this judgment, I cite the royal commissioner and what he said about how when he as a judge what he used to observe and what the commission brought to his eyes about how this is long-term, long-term effects upon victims and they don't recover.
CROWN: And, your Honour, so when you look at -
HIS HONOUR: And I will be taking that into account." (Emphasis added.)
At the conclusion of submissions, his Honour adjourned the matter for sentence on the following day.
When the respondent was sentenced, the sole reference to s 25AA in the remarks on sentence was to s 25AA(3) when his Honour considered the victim impact statements: see [38]-[39] above. [25]
The judge's sentencing remarks were detailed and extended to some twenty written pages. It is surprising if his Honour took s 25AA(1) into account that he did not say so. His Honour's sentencing remarks were not delivered immediately following oral argument but reserved. The degree of latitude afforded to sentencing remarks delivered ex tempore is not available.
The absence of any reference to the consideration of s 25AA(1) in his Honour's sentencing remarks leads to the inference that the judge may have overlooked the requirement that he was obliged to sentence the respondent in accordance with the sentencing patterns and practices that applied at the time of sentencing for those child sexual offences that fell within the definition in s 25AA(5).
It was important for the judge to expressly state how the respondent was being sentenced as not all of the charges were child sexual offences within the definition. As the victim GO was 16 years old when he was indecently assaulted, s 25AA(1) did not apply to this offence (charge 7). For that offence, the respondent was to be sentenced in accordance with the sentencing patterns and practices that existed in 1991. For all the other charges, the respondent was to be sentenced in accordance with the sentencing patterns and practices that existed in July 2019.
There is no reference to this distinction in the sentencing remarks. Furthermore his Honour paid close attention to the sentences imposed on the respondent in 1994, 2015 and 2016. At no stage did his Honour expressly recognise that these sentences were imposed before s 25AA(1) was enacted.
However, his Honour was plainly mindful of the trauma of the sexual abuse on each of the victims and paid particular regard to the victim impact statements of MO and JM.
In discussion between the judge and the Crown, his Honour expressed concern about the lack of statistical information which might assist a judge in sentencing in relation to "current standards and principles." [26] Mr Barrow put to this Court that the Crown had not detailed what were current "patterns and practices."
Current sentencing practices understand the harmful effects of sexual offending against children. Although there was no discussion on this issue either before the judge or in this Court, it seems to me that "sentencing practices at the time of sentencing" includes the court setting a non-parole period in accordance with the provisions of s 44 of the CSP Act at the time of sentence and not in accordance with s 44 of the CSP Act which was in force prior to the enactment of the present section in 2002, [27] or other relevant statutory provisions such as the Parole of Prisoners Act 1966 (NSW) that may have applied at the time of the offending.
As to current sentencing "patterns," it is not unexpected that the Crown has been unable to provide statistical material given the recent enactment of s 25AA. This will resolve over time and be provided by the Judicial Commission sentencing statistics and comparative cases.
When fixing a sentence for an old child sexual offence which falls within s 25AA, a sentencing judge should:
1. Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned;
2. Determine the facts as now available to the court;
3. Pay regard to the maximum penalty and standard non-parole period (if any) that applied at the time of the offence;
4. Identify where the offence falls in the range of objective gravity of that offence;
5. Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the CSP Act;
6. Set a non-parole period in accordance with s 44 of the CSP Act as it operates at the time of sentence, and
7. Fix the balance of the term of the sentence.
When an aggregate sentence is to be imposed s 53A of the CSP Act is to be followed.
The sentencing judge should expressly state that the offender has been sentenced in accordance with s 25AA(1) and that the court has had regard to the trauma of sexual abuse on the child in accordance with s 25AA(3).
The sentencing judge must have no regard to patterns or practices of sentencing which may have operated at the time of the offending.
In Mill, the High Court stated that the principle in Todd applies not only to fixing the non-parole period but also to the fixing of the head sentence. [30]
However, Todd and Mill were both cases where the offender came to be sentenced in one State some years after the commission of an offence as during the intervening period he had been serving a sentence imposed in another State in respect of an offence of the same nature committed at about the same time.
In many cases where the issue of delay has been considered, Todd and Mill have been distinguished as the delay in Todd and Mill was due to the operation of the criminal justice system. [31]
In historical sexual assault cases, a child sexual offender does not necessarily benefit from an extensive delay in the revelation of offences. In Hornhardt v R, [32] the offender pleaded guilty in 2015 to seven offences of child sexual assault that occurred between 1965 and 1978 but were reported to police in 2014, Hoeben CJ at CL (with whom Price and Adamson JJ agreed) in answer to the submission that the sentencing judge did not adequately take into account the delay in prosecution said at [53]-[55]:
"This is a somewhat bold submission. It is notorious that offending of this kind by its very nature causes victims to be reluctant to come forward and make a complaint. This is particularly so where close family relationships are involved, such as we have here. It is a significant distortion of the reality of the situation to argue that in some way the applicant has been disadvantaged because his criminality has remained undetected for almost 50 years when that lack of detection is directly related to the nature of the offending.
On this issue, the observations of Beech-Jones J (with whom Hoeben CJ at CL and Garling J agreed) in Wilson v R [2017] NSWCCA 41 at [48] in the context of sentencing for historical child sexual offences is apposite:
'48 … Finally with delay it is also said that a "sentence for a stale crime does call for a measure of understanding and flexibility of approach" (Blanco at [16]). I do not accept that the commission of an offence on someone so young even 30 years ago should necessarily be considered a "stale crime".'
To similar effect were the observations of Button J (McClellan CJ at CL and Bellew J agreeing) in Magnuson v R [2013] NSWCCA 50 at [62] which was also in the context of historical child sexual assaults:
'62 But it is useful to say at this stage that, whilst it is true that the applicant had not offended again since the last of the offences, it is also true that, having sexually assaulted his three victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time.'"
In my respectful opinion, the judge appears to have overlooked the reasons for the delay in the complaints and the benefits the respondent enjoyed in escaping punishment for the serious crimes that he committed many years before.
The respondent used his position of trust and influence as a Catholic priest to sexually abuse vulnerable children and to avoid his offending being reported. His behaviour included telling MO that he was special and that it was special to be with the respondent in the behaviour that involved indecent assault. The respondent said to JM to keep his conduct towards him as a secret because no-one would believe him. The respondent reminded JM that he was "the father of this parish." After the act of sexual intercourse with PP, the respondent told her that she was special and God would do great things with her.
As Hoeben CJ at CL observed in Hornhardt, it is well known that the sexual abuse of children causes a reluctance on the part of victims to come forward and make a complaint. In Moon, Whealy J said at [35]:
"It is not uncommon where a very young or vulnerable person is abused by an older person that the complaint does not emerge until many years later. It is the very nature of the relationship that, in many cases, leads to this repression and inhibition."
Whealy J's observations are particularly apt to the circumstances of the respondent's offending.
In the case of RC, when the respondent was confronted by RC's mother, it was always open to the respondent to admit his offending and subject himself to the criminal justice system in 1968. This is also the case in all of the offences which were before the judge for sentence. It is well settled that the Todd principle does not apply to a state of uncertainty experienced by an offender who remains silent and hopes that his offending remains undetected. [33]
Although it was open to the judge to take into account in the respondent's favour his voluntary cessation of criminal activity, his remorse, contrition, rehabilitation, his time on bail and the adjournments in the sentencing proceedings it was not open to his Honour to conclude that due to delay and the rehabilitation of the respondent, considerations of fairness to him "play a dominant role in the sentence."
I acknowledge that sentencing judges have a wide discretion and the weight to be given to particular sentencing considerations is quintessentially for the judge. However to elevate considerations of fairness to the respondent to a "dominant role" in the circumstances of this case is, in my respectful opinion, more than giving delay and rehabilitation undue weight but is an error of principle and is reviewable by this Court in accordance with the principles of House v The King. [34] The purposes of sentencing, [35] which include general deterrence; the recognition of serious harm to each of the victims; the accountability of the respondent; the denunciation of his conduct and adequate punishment for his crimes could not be regarded as being subordinate to delay and rehabilitation.
Having taken into account the respondent's past sentences and the question he had asked, the judge said that there must be some period of imprisonment over and above the terms previously imposed. The respondent was sentenced to an aggregate term of imprisonment of 30 months with a non-parole period of 9 months.
The sentencing exercise that the judge was required to undertake was particularly difficult and somewhat artificial. All of the previous sentences had expired but had been imposed for criminal conduct being sexual offences committed against male children. Section 25AA did not apply to these offences. The respondent was to be sentenced by the judge for similar criminal conduct with the exception of charge 6. The victim of that offence was PP, an 11 year old girl. Section 25AA applied to all of the charges other than charge 7.
One of the purposes of the totality principle is to avoid a "crushing sentence." In R v MAK, [41] the Court stated at [17]:
"The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint."
The respondent was on bail at the time he was sentenced by the judge. The characterisation of a sentence as "crushing" normally applies to the imposition of a sentence on a sentence currently being served by an offender. As Basten JA explained in Director of Public Prosecutions (Cth) v Beattie, [42] in some circumstances the characterisation as "crushing" is "no more than a colloquial substitute for manifestly excessive."
Whilst one of the purposes of the totality principle is to avoid a "crushing" or "manifestly excessive" sentence for multiple offences, a judge must not overlook the need to ensure that the sentences viewed in combination reflect the seriousness of an offender's conduct as a whole. In R v MAK, [43] the Court further said at [18]:
"A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences." (See also Vaovasa v R [2007] NSWCCA 253; (2007) 174 A Crim R 116 at [18].)
On the other hand, it would be impermissible for a sentencing judge to conclude that the previous sentences were manifestly inadequate and increase the sentence to be imposed to ensure that the aggregation of all the sentences was a just and appropriate measure of the totality of criminality involved. I find it necessary to make this comment as the respondent's sentence in 2016 was markedly lenient.
What then was the totality of the criminality involved in the respondent's offending?
As the respondent's offences and sentences in 1994, 2015 and 2016 have been detailed at [70]-[78] above, I will not repeat them. The previous offences involved three victims, all male, the youngest of whom was 12 years old at the time of one of the offences. The earliest occurred between 1973 and 1975. The last offence occurred in 1987.
For the offences for which the respondent had been convicted prior to being sentenced by the judge, the combined effective sentence was a head sentence of 6 years 1 month and 20 days and a non-parole period of 3 years 9 months and 20 days.
The offences before the judge concerned five different victims. The earliest offence occurred in 1968 and the last of the offending in 1990. All of the offences were objectively serious but the offences against JM and PP were more serious than any of the offences for which the respondent had been sentenced in the past or stood for sentence before the judge. JM was six or seven years old when he was indecently assaulted by the respondent (charge 4) and only nine years old when the respondent pressed his penis against JM's anus causing pain (charge 5). It should not be overlooked that the offending against MO commenced when MO was 10 years old.
The offence against PP was dissimilar to the offences for which the respondent had been previously sentenced. It involved the digital penetration of an 11 year old girl. His Honour recognised that this offence was the most serious of all the respondent's offending.
For the offences that the respondent had been sentenced by the judge, he was sentenced to an aggregate term of imprisonment of 30 months with a non-parole period of 9 months. Notwithstanding the need to moderate the sentence by applying the totality principle, the respondent's sentence failed to reflect the seriousness of the respondent's conduct as a whole. I can see no principled justification for such a low aggregate head sentence and non-parole period. The totality principle is not to be used as a cloak of convenience so as to impose a manifestly inadequate sentence. In my respectful opinion, it appears that the judge's erroneous approach to the issue of delay contributed to the length of the sentence.
In varying the statutory ratio between the balance of term and the non-parole period to 30%, his Honour found special circumstances being the respondent's age and prospects of rehabilitation. His Honour had taken into account the respondent's rehabilitation as a mitigating factor in determining the full term of imprisonment. This Court has emphasised that factors already taken into account in calculating the head sentence are not to be double counted as "special circumstances" in favour of the offender. [44] In any event, the non-parole period of 9 months failed to adequately reflect the objective gravity of the respondent's offending.
I do not find the judgment of this Court in O'Sullivan to be of assistance in determining whether his Honour's sentence is manifestly inadequate. O'Sullivan was a manifest excess appeal by the offender against his aggregate sentence of 8 years and 6 months with a non-parole period of 6 years for 14 counts of assaulting a male person contrary to s 81 of the Crimes Act between 1972 and 1983. At the time of sentence, the offender was serving an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years for similar offences. This Court (Hoeben CJ at CL, Walton and Price JJ) concluded that the offender had failed to establish manifest excess and dismissed the appeal.
I am satisfied that the head sentence and non-parole period are manifestly inadequate. My conclusion is not founded upon the view that if I had been the sentencing judge, a greater sentence would have been imposed in the exercise of my sentencing discretion.
Grounds 1 and 2 of the appeal have been established.
In support of the submission as to his anxiety, the respondent referred to the following passages in Dr Webster's report:
"Being 79 years of age, Mr Cattell is now in old age and suffers a considerable range of physical syndromes and impairments. While he has at all times presented as well-groomed and organised in his attendances with me, he does not impress as a generally healthy and well man. While reasonable weight management is readily observable, he does not smoke cigarettes nor does he drink alcohol to excess, his physical condition has undoubtedly been affected by the long-term stress of guilt, fear of consequences, and social isolation. He has also been exposed [to] stressors arising out of being called to account for his harmful and criminal acts, from drawn-out legal proceedings, two periods [of] incarceration as a known sexual offender, subsequent parole supervision requirements, and sex offender registration. He reported feeling increasingly tired and having less energy as he grows older." [47]
The respondent also relied upon his affidavit sworn on 12 November 2019. In the affidavit, the respondent recounts his feeling of relief that the prosecution was finally over after he was sentenced by the judge and of his distress after being notified of the appeal. The respondent states:
"I felt very distressed by the news of the appeal. I asked to see welfare staff but there was no response. I have been on edge ever since. My sleep has been poor, I have lost about four kilograms of weight. When in the community I was prescribed medication for anxiety, plus a drug called Avanza that helped me sleep. I have had no medication since I returned to prison." [48]
The respondent further recounts the threats and difficulties that he has experienced in custody following the location of the letter from the Director of Public Prosecutions by a cellmate. He expresses distress and concern for his safety. The respondent has been subsequently transferred to Long Bay Correctional Centre and been placed in a section of the gaol for older prisoners.
Another argument was that the respondent's long term engagement with the criminal justice system since 1994, a period of 25 years, for offending that ceased in 1991 was very unusual in and some way imprisonment could be seen to be more arduous than it would have been had all the matters been dealt with many years ago. The respondent contended that the unusual features of the case do not make it a useful vehicle for the Court to lay down principles for the governance and guidance of courts having the duty to sentence convicted persons.
I am not persuaded that the features of this case are so unusual that it will be an inappropriate vehicle for laying down principles for the governance and guidance of sentencing judges. Varying delay in the reporting of offences by the child victims of sexual assault offences has led to the prosecutions of a common offender at different times. The Royal Commissions' reports have increased the number of prosecutions for historical sexual offences. It is not uncommon for sentencing judges to be required to sentence offenders of an advanced age for sexual offences against children committed many years before and who have previous convictions for similar offending.
The Crown has not contributed to the manifest inadequacy of the sentence nor delayed the appeal.
The expiration of the non-parole period on 25 April 2020 and the respondent's stress are relevant considerations but are to be balanced against the absence of delay in the appeal and the provision of guidance to sentencing judges.
In my opinion, the Crown has demonstrated that the discretion to decline to re-sentence should not be exercised by this Court. The proper administration of justice does not support the exercise of the residual discretion. Public confidence in the justice system would not be served by allowing a manifestly inadequate sentence to stand.
Elchiekh v R [2016] NSWCCA 225 at [58]; R v Spiers [2008] NSWCCA 107 at [37]-[38].
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A.
See [88] above.
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [13].
R v Cattell [2019] NSWDC 504 at [68].
[2019] NSWCCA 117 at [50]-[54].
Postiglione v The Queen (1997) 189 CLR 295 at 307-8; [1997] HCA 26; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397.
[2006] NSWCCA 381; (2006) 167 A Crim R 159 (Spigelman CJ, Whealy and Howie JJ).
[2017] NSWCCA 301; (2017) 270 A Crim R 556; 327 FLR 71 at [40].
[2006] NSWCCA 381; (2006) 167 A Crim R 159.
R v Fidow [2004] NSWCCA 172 at [18]; R v GWM [2012] NSWCCA 240 at [114].
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9; 89 ALJR 407; 317 ALR 308; 243 A Crim R 282; 151 ALD 8.
(2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152.
Report, Dr Gerard Webster, 10 July 2019, 7-8.
Affidavit, Richard St John Cattell, 12 November 2019 at par 4.
Porter at [51].
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Decision last updated: 17 December 2019