R v Leonard

Victim Impact Statement

1. There is a Victim Impact Statement in this case. It is not relied upon as aggravating the offending, and I do not treat it that way. However, the victim's statement provides clear confirmation of the serious and often life-long psychological scars that are the almost inevitable result of sexual offending against children. The victim impact statement, consistently with the evidence given by the victim at trial, reminds the Court of the vulnerable position of a child, who, like this victim, was subject to the supervision and authority of people like the offender. People who were - as the victim says - "placed on a pedestal and regarded as Holy people who were God's representatives on Earth". It is perhaps to state the obvious to observe that the victim of these offences was not only vulnerable but utterly helpless. He was helpless to stop the offending, and he was helpless also because he was unable to tell anyone about it. As the victim himself said at T68: My parents were very religious and if I had said anything to them - they held priests in high regard and they were regarded as holy people and people you respect and obey, and they had a - you know, respect for the Catholic Church. So if I was to say anything to them they would have been shocked and they would have been - would have been a clash with their faith and you know, and a conflict between wanting to help me and their belief in the church, so. … Also I didn't want to get into trouble if I'd said something and then, you know, the school didn't believe me, you know, they could have expelled me. If my parents believed me they might have taken me out of the school, it was a well-regarded school. I knew my parents wanted me to go there. They struggled, you know, to pay the fees but they wanted - it was regarded as the best Catholic private school so they wanted me to stay there and I was aware of that. And I didn't want to get Brother Leonard into trouble as well because I, you know, was friendly with him and apart from the abuse I liked him. So all these things were going around in my head. Mainly the shock of the incident and the traumatic nature of it.

Objective seriousness

1. I make the following observations and findings about the objective seriousness of the offences before the Court.
2. Firstly, the offences involved a breach of trust and authority. The offender was, as a teacher and member of the clergy, trusted by the victim, the victim's parents, the school, and the community generally. He was also, as a teacher in charge of boys at Riverview, in an undoubted position of authority. The offender abused that position of trust and authority in committing the offences, no doubt knowing that the victim would be compliant, and would be unlikely to say anything to anyone, or, even if he did, that it was unlikely he would be believed. The offender's actions involved an extremely serious breach of that trust, and a grave abuse of his position of authority. The concepts of trust and authority are distinct (See Mohindra v R [2020] NSWCCA 340 at par 25). However, I am conscious of the fact that in this matter they both arise essentially out of the same circumstances. I have therefore taken care not to double count these aspects inappropriately.
3. Secondly, the offences were committed upon a 12 year old boy, by a man who was aged about 30. The victim's young age, and the age differential, makes the offence more serious than if the victim had been older, or had been an adult.
4. Thirdly, the offending involved skin on skin contact with the victim's anus and with his genitals. The offences involved a terrible, and no doubt confusing and humiliating invasion of the victim's privacy and physical and emotional safety.
5. It was submitted by the Crown that the offender's relative size and physical strength placed him in a position of physical supremacy. While I accept that this is so, it was not the offender's physical size that enabled him to offend, but rather his position of trust and authority - matters which I have already taken into account. Similarly, in my view, the Crown's argument that the offender was in a position of social supremacy, is really a re-iteration of matters I have already considered in the context of trust and authority.
6. I accept that the offences were relatively brief in duration. However, while this is relevant, it is of limited significance, because offending of this kind is capable of having a profound and deleterious effect on victims for many years, if not the whole of their lives: Croxon v R [2017] NSWCCA 213, at [38].
7. I also accept that the offences were opportunistic, and did not involve planning or sophistication. Furthermore, they did not involve any gratuitous threats or violence, which would have aggravated the offences if these elements had been present. However, the absence of threats or violence is not a matter that mitigates the offences, because sexual offences against children are easy to commit, because of the compliant nature of children, especially when the offence is committed by a trusted adult.
8. The Crown in oral submissions argued that the offences are above the mid-range of objective seriousness, while Counsel for the offender submitted that they lie below the mid-range and in the low range.
9. Having regard to all the circumstances, I assess each offence as being a relatively serious example of this type of offence, particularly by reason of skin-on-skin contact, the age of victim and the serious breach of trust and authority. If placed on a notional scale, I would regard each offence as being well above the low range, but slightly below the mid-range.
10. The offences before the Court are now repealed, and have been replaced by new offences, which means that if committed today, the offending would attract much higher maximum penalties. The offence of "indecent assault on a male" - which applied in 1974, was capable of applying to a wide range of offending, including offending against adult males as well as male children. The offence in 1974 also was capable of application to penetrative acts such as fellatio, and digital penetration of the anus - offences which, if committed on a 12 year old boy by a person in authority today would amount to aggravated "sexual intercourse" with a child under the age of 14, carrying a maximum penalty of up to 20 years imprisonment.
11. However, I am bound by the maximum penalty for the offence as it was in 1974, not as it stands under provisions in force in 2024. The historical comparison to which I have referred however, is relevant, because it indicates that the offence under repealed s.81 was capable of applying to much more serious sexual acts than those now before the Court. This is a matter that I have taken into account in my assessment of the objective seriousness of the offences.
12. None of this legislative history diminishes the seriousness of the offences before the Court, or their lasting effects on the victim in this case. The history is noted however, to record the fact that in assessing the objective seriousness of the offences before the Court, I have done this while bearing in mind other more serious conduct which in 1974 was capable of falling within the same offence provision.
13. While the sentence to be imposed is limited by the maximum penalty that applied in 1974, I am nonetheless required by s.25AA of the Crimes (Sentencing Procedure) Act 1999 to sentence having regard to sentencing patterns and practices which apply currently, and also with regard to the trauma associated with child sexual abuse, as it is now accepted and understood. In other words, the offender is not to be sentenced by reference to the sentencing patterns of the late 1970s or early 1980s, which were considerably more lenient: Magnuson v R [2013] NSWCCA 50. Sentences imposed in that era were also not informed by an understanding of the serious consequences of sexual abuse upon children.

Subjective matters

1. The Court has limited material relating to the offender's subjective circumstances.
2. He has never previously been convicted of any criminal offence.
3. The Offender was born on 22 August 1944, and completed his secondary education in 1961 at St Patrick's College, East Melbourne. He commenced his Priesthood studies as a Novitiate in August 1962, and worked as a teacher at Riverview from 1968 to 1984. He apparently left teaching some years after the offending, and since then has lived his life in Victoria as a Priest.
4. The most relevant aspect of the offender's subjective circumstances is the fact that last week he reached the age of 80, and that he has a number of significant health issues.
5. Since 2020, he has been living in an aged care facility. A report from that facility notes that he needs assistance with daily activities, and requires pain management.
6. The report of Oncologist Professor Peter Gibbs notes that the offender was diagnosed in 2014 with rectal cancer, which was treated initially with abdominoperineal resection after chemotherapy. However, the offender's cancer returned in January 2016, and in May of that year he underwent further surgery, radiation and chemotherapy. As a result of this, he has a permanent colostomy. The report further notes that when last reviewed by Professor Gibbs in April 2020, he was cancer free, and that given the 8 years since the last recurrence of the disease, it is extremely unlikely that there will be further developments related to his cancer diagnosis. The report notes that the offender's prognosis is the same as for a man of his age with his other comorbidities.
7. The Offender's comorbidities are noted in the report of Dr Abraham of 4 August 2024. They include osteoarthritis with bilateral hip replacements. The offender often uses a wheelchair to get around, but he remains independent with transfers. He has chronic asthma, and atrial fibrillation, although these are controlled with medication. He also has chronic kidney disease with hypertension, which requires monitoring. As a result of his cancer surgery, the offender has both a colostomy and a urostomy bag, which must be changed regularly. He also suffers an Anxiety Disorder, which requires monitoring. The report notes an overall guarded prognosis as to the offender's future health.
8. Clearly the offender's age and various medical problems are such that a term of imprisonment would involve serious hardship for him, hardship well beyond that experienced by a younger and healthier offender. In this regard, it is relevant to note the report of Professor Gibbs which says that "It may be potentially difficult to manage his colostomy in a custodial environment, but this should still be manageable. Otherwise, his medical history does not impact his health in any way that would be relevant."
9. It is also relevant to note the report of Dr Gary Nicholls of Justice Health, which comments on the capacity of Justice Health to deal with the offender's health challenges. That report states that Justice Health does have the capacity to manage the offender's various health concerns, and notes that it currently manages many patients in prisons, who are older than this offender. The report states that if incarcerated the offender would have ongoing local medical review, and specialist medical appointments as required. The report in summary says that "There is no problem in providing medical care to Mr Lawrence (sic) at a suitable centre. This may be a metropolitan centre or an aged care environment if required."

Remorse

1. There is no remorse in this case, and as far as I am aware, the offender maintains his innocence.

Prospects of rehabilitation / Risk of re-offending

1. There is no evidence of any other offences over the past 50 years. Given the offender's age, health issues, and his current living circumstances, I consider his risk of re-offending is minimal.

Delay

1. Clearly there has been a very significant delay in the offences coming to light and to trial and sentence. The victim first made his allegations in late 2017, and the offender was not charged until October 2020. The proceedings were then discontinued in April 2021, but renewed by Ex Officio indictment in October 2022. The offender first stood trial in July 2023, when a jury was unable to reach a verdict.
2. It has been said that "sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach…": R v Todd [1982] 2 NSWLR 517.
3. However, the principle referred to in R v Todd may not apply, or may not apply with such force, in a case, such as this, where the offender has remained silent and hoped that his offending remains undetected: R v Cattell [2019] NSWCCA 297, at [140]. 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: Hornhardt v R [2017] NSWCCA 186. In such cases, the offender will often have enjoyed the benefit of a place in the community to which (usually) he was not entitled: R v Cattell; R v Obbens [2022] NSWCCA 109, at [20]. In my view, this is a case of that kind.
4. Nonetheless, I do take into account that, in more recent times, since the victim's allegations came to light, and particularly since the offender was initially charged on 12 October 2020, he has experienced the stress and uncertainty of having these proceedings hanging over his head. This has been added to by reason that the initial charges were discontinued in April 2021, but then re-enlivened by Ex Officio indictment in October 2022, as well as by the fact that the offender has now stood trial on two occasions. As I have said, these are matters I have taken into account as part of the offender's overall subjective circumstances.

Determination

1. I have had regard to purposes of sentencing in s.3A of the Crimes (Sentencing Procedure) Act 1999.
2. I make the following observations about the relative importance of the various s.3A factors in this particular case, although in addressing them I will approach them in a different order to how they appear in s.3A.
3. Firstly, I regard personal deterrence as being of lesser importance, given the offender's age and the unlikelihood that he will in the future have opportunities to offend in a similar manner.
4. Secondly, and for the same reasons, I think the need to protect the community from the offender is of limited importance.
5. Thirdly, the importance of promoting the offender's rehabilitation is of limited relevance because of my conclusion that there is little risk of his re-offending, and in this sense his rehabilitation appears largely to have been achieved.
6. However, there is in my view a need for the sentence in this case to reflect the importance of general deterrence. Furthermore, there is a very real need for adequate punishment, and for denunciation, a need to make the offender accountable for his actions, and a need to recognize the harm done to the community, and in particular, the harm to the victim.
7. I am of the view, having regard to the objective seriousness of the two offences, and the relevant purposes of sentencing to which I have referred, that the threshold in s.5 is crossed. In other words, I am satisfied that the offences require that a term of imprisonment be imposed.
8. However, it was submitted on behalf of the offender, that given the very long delay, during which the offender has not re-offended, and given the offender's age and health issues, that his offences could adequately be punished by his conviction, and the imposition of a Community Correction Order.
9. In determining the question of whether full time imprisonment is the only appropriate penalty, rather than some other outcome, such as the imposition of a Community Correction Order, I have had regard to a number of decisions of the NSW Court of Criminal Appeal.
10. In Flaherty [2016] NSWCCA 188, the Appellant was a former Catholic Priest who had committed 5 offences involving 3 different students between about 1972 and 1981. He received a discount for a plea of guilty to 3 of those offences, was 72 years old at the time of sentence, and had various medical problems. The offending was mostly more serious than in the instant case. The Court of Criminal Appeal, after finding error in the sentencing judge's approach, imposed an aggregate head sentence of 2 years and a non-parole period of 3 months. It is to be noted however that Flaherty was decided before the introduction of s.25AA, and the sentencing judge was therefore required to sentence having regard to sentencing patterns and practices in place at the time of the offending.
11. Wade v R [2018] NSWCCA 85 involved a Marist Brother Headmaster who had sexually offended against 2 victims, at different schools, firstly in 1976 and secondly in 1980. There was no discount for any plea of guilty. Admittedly, the offence committed against one of the boys involved fellatio on the boy, and was thus considerably more serious than the instant case. The Appellant was 81 years old at sentence, and unlikely to re-offend such that personal deterrence was of limited relevance. The Court of Criminal Appeal declined to overturn the 18 month head sentence with 9 month non-parole period. Again however, this was a sentence that was imposed before the introduction of s.25AA.
12. O'Sullivan [2019] NSWCCA 261 was a case in which s.25AA did apply. It involved offending by a Marist Brother teacher against numerous victims, over a period of around 11 years - these being aspects which render the offending much more serious than the instant case. There was no finding of remorse. A discount of 10% had been allowed for a relatively late plea. The Appellant was 80 yrs old at sentence, and had medical and psychological problems. The Court of Criminal Appeal dismissed an appeal against the head sentence of 8 years 6 months with a non-parole period of 6 years.
13. Another case to which I have had regard is R v Obbens [2022] NSWCCA 109. In that case, the Court of Criminal Appeal dismissed a Crown appeal from a Community Correction Order imposed on a former Christian Bros dormitory master who had offended in 1989 against a 12-13 year old student. That was a case where objectively, the offending was somewhat similar, but more serious than in the instant case. It was a case where the offender was 76 years of age, and had various physical and mental health problems. Perhaps most significantly, however, it was a case where the offender had already served a term of imprisonment for similar offending in the 1980s, had experienced significant difficulties in prison, had demonstrated insight, made positive steps towards his rehabilitation, and had committed to therapy with a Psychologist to address his sexual disorder. It is also noteworthy that the offender received a 25% discount on account of a plea of guilty.
14. I do not suggest that any of these cases can be said to be truly "comparable" to the instant case, especially given that in each case the objective seriousness was more serious, and the subjective factors were, inevitably, different to the case now before the Court. However, I have found these decisions to be of some assistance in the instinctive synthesis that I must perform, in that they provide examples of sentencing outcomes relating to elderly offenders with health issues, some of whom have nonetheless been required to serve terms of full time imprisonment.
15. The significance of age and health in the sentencing process has been considered numerous times by the courts. In R v Sopher (1993) 70 A Crim R 570, the NSW Court of Criminal Appeal said, at p573: Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances where to keep a person in gaol will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life …
16. While I accept that the offender is elderly, and that any term of imprisonment may represent a significant portion of his remaining life, the evidence does not demonstrate that he is a person who "only has a short time to live". Nor does it demonstrate that he needs intense treatment that cannot be provided in gaol.
17. However, it is a case in which the offender's age and significant health problems will render any time in custody significantly more harsh than for a younger and healthier man: R v Miranda [2002] NSWCCA 89, at [37].
18. I have given full weight to this factor, and to all of the other points made in the offender's favour.
19. As I have said however, it is necessary for the sentence to reflect general deterrence, and more importantly, the need for adequate punishment, denunciation, accountability, and the recognition of harm.
20. In my view, these purposes can only be served by the imposition of a term of full time imprisonment.
21. I intend however to make a generous finding of special circumstances based on the offender's health and age, and this being his first time in custody.
22. I impose an aggregate head sentence of 9 months. I impose a non-parole period of 3 months.
23. The indicative sentences for each offence are 8 months.
24. In terms of totality - There should be only minimal notional accumulation, given that the 2 offences were essentially part of one incident.
25. Those sentences will date from today. The head sentence will therefore expire on 26 May 2025 and the non-parole period will expire on 26 November 2024.

Amendments 29 August 2024 - "Objective seriousness" heading moved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2024