In 1987 and 1989, Brother William Obbens, a Christian brother now aged 76, committed a number of offences against young boys. The period of offending has been described by Brother Anthony Whelan AM as a sad chapter in his life, he say that the assessment and treatment program following it, in the 1990s, and the subsequent incarceration, seems to have had a salutary effect on him. Whelan found him to be honest, humble and reliable and said that the events in the 70s are out of character with his general character and the subsequent investment of the Christian brothers organisation indicates a preparedness to support him in rehabilitation to protect the community and him.
Obbens faces sentence, however, in the light of amendments to the Crimes (Sentencing Procedure) Act 1999 in 2018 which require the Court under s 25AA to sentence an offender for child sexual offences in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence, and that section also requires a Court to 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.
The sentencing process for what Price J described in R v Cattell [2019] NSWCCA 297 (at [123]) as "an old child sexual offence" falling within s 25AA requires the sentencing judge to,
(a) Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned;
(b) Determine the facts as now available to the court;
(c) Pay regard to the maximum penalty and standard non-parole period (if any) that applied at the time of the offence;
(d) Identify where the offence falls in the range of objective gravity of that offence;
(e)Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the CSP Act;
(f) Set a non-parole period in accordance with s 44 of the CSP Act as it operates at the time of sentence, and
(g) Fix the balance of the term of the sentence.
…
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
The offence for which Mr Obbens is to be dealt with today is one under the former s 61E(1)(A) of the Crimes Act 1900 which was repealed in 1989, namely, indecent assault of a person under the age of 16 under authority. The offence carries a maximum penalty of six years imprisonment with no standard non-parole period.
The purposes of sentencing, of course, under s 3A of the Crimes (Sentencing Procedure) Act 1999 must be taken into account.
The offender also asks to be dealt with on a Form 1, for a further count pursuant to the same section, and that will be dealt with in the way suggested by the Chief Justice in the guideline judgment on these matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146) .
The plea was entered in circumstances which the Crown acknowledges attracts a 25% discount on any term of imprisonment pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999.
The agreed facts show that the offender was 44 at the time of the offences and the victim was aged 12 or 13. The victim was a boarder in year 8 at the time. The offender was one of a number of a number of Christian brothers who taught at the school. He was a boarding master. He had his own room on the same level as the boys dormitory and he was the dormitory master for the first half of 1989.
The first count involves a day after school when the victim went to the offender's room as he had sore testicles and sought permission to see the school nurse. The offender got up and shut the door and asked where the victim was sore. He said "My testicles". The offender said "Show me". The victim pulled his pants down, held his penis to the side to show the offender the testicles. The offender bent over to look at his testicles and said "Let go". The victim dropped his hand. The offender commenced feeling his testicles asking where the pain was and then he commenced stroking the penis with his right hand, while holding the testicles in his left hand. The victim stepped back and pulled his pants up.
He walked to the door and tried to open it but he was unable to. He was scared. The offender said "I just need to check you before you go to the nurse". The victim opened the door and went and sat on his bed. He was shaking with fear, about what had occurred. About half an hour later, he went to the nurse but he refused to show her his testicles as he was still scared about what had occurred. He was given Panadol. He did not report the offences. He was extremely fearful that he will get into trouble or that it would happen again.
The Form 1 matter arose on the same day and the facts show that the victim attended dinner and night study before eventually going to bed. Sometime during the night, the offender entered his bedroom and woke him. He asked the victim to come to his room so that he could speak to him. The victim was worried he would get into trouble, so he complied and followed the offender. He led him to his room, closed the door and both sat on the bed. He told the victim he wanted to check his testicles again to see if they were okay. He put his right hand down the front of his pyjama pants and felt the victim's penis and testicles. The victim told the offender that his testicles were fine and he had no further pain before moving the offender's hand away, using both hands. The victim got up and left the room and went into the dormitory bathroom as he felt that was the only place he would be safe. He sat on the toilet all night, until other students started waking up.
In 1990, the offender was moved to a new school as a result of offences he committed against other Year 8 male students, during the same time period. In the victim's senior years of school he became defiant, he began misbehaving and eventually he was told he was not to remain in the boarding school and he became a day student in Years 11 and 12.
In early to mid-2020, the victim attended his doctor because he had sore testicles which brought back memories of sexual assaults occurring at St Patrick's. In the months following, the victim and his wife watched an ABC television program which involved victims speaking out about sexual abuse by church members and in June 2020 he disclosed the offences to his wife and decided to report to police.
On 19 February 2021, the offender attended Bankstown Police Station where he was arrested and cautioned. He declined to participate in an interview.
His criminal record contains an entry for an indecent assault for which he was charged on 17 May 1989 and dealt with under s 556A without conviction. There are three counts under s 61EA of the Crimes Act 1999 which were dealt with by Frearson DCJ, in circumstances that are outlined, which led to the imposition of a three year sentence with an 18 month non-parole period, commencing 13 October 2016, the date of the sentence imposed by Frearson DCJ. The criminal record shows that the offence date was 1 January 1989 to 3 June 1989 but it is clear that that cannot be precisely established. In 2019, he appeared at Burwood Local Court with failure to comply with reporting obligations. That was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999.
As the Crown initially put in written submissions, which position was ultimately adopted and accepted by Mr Skinner, the sentencing exercise here involves the Court answering the question, what would have been the likely effective head sentence imposed if the offender had been sentenced for all offending at the time of Frearson DCJ sentence in 2016. Such an exercise must also take into account s 25AA. Implicit in that question is the need to consider the principle of totality of criminality, which requires a judge to ensure that the total effective or aggregate sentence is derived through a process of accumulation with regards to individual sentences, so that it appropriately reflects the overall criminality and like offences as Hulme J said in Porter v The Queen [2019] NSWCCA 117.
In R v Cattell [2019] NSWCCA 297, Price J, posed the question to be answered at [157], "[w]hat then was the totality of the criminality involved in the [respondent's] offending?".
The facts on which Frearson DCJ imposed sentence show that count 1 occurred in 1987, the victim was a year 8 boarder. He had been called into the offender's office bedroom. He said that he was homesick. The offender then walked behind him, put both arms around his chest in a big hug and squeezed against his body. The victim could feel his erect penis against his mid-back and could feel his face very close to the back of his neck. He kept squeezing him tighter and tighter, pulling his body against the erection. He said "You know you can come and speak to me if you are homesick" and the incident lasted for a couple of minutes.
The offender committed similar offences during that year, after calling him into his office bedroom and talking about the victim's homesickness. The Crown relied on the ongoing offending to show that the one occasion described was not isolated but the fact that the offending was not isolated does not aggravate the charge.
The second count involved another Year 8 boarder in 1987. He called the 13 year old victim into his office bedroom after school hours. They were talking and he stood behind the victim, reached around and unzipped his trouser pant and fondled his penis over the top of his underpants. This occurred for five or ten minutes. The offender was fully clothed.
The third count involved a Year 8 boarder in 1989 when the offender was the dormitory master and on one occasion during 1989 when the victim was 13. He was hit by the offender with a leather strap across his hands and called into his office bedroom and given a lecture about bad behaviour. He was suffering homesickness. The offender then proceeded to hug the victim from behind, pressing his groin into his lower back by using his hands to pull his body towards him and continued for a period of about a minute. Thereafter, he committed similar offences on the victim on a couple of later occasions. Again, the Crown relies on the ongoing offending to show that the one occasion described was not isolated.
When sentencing, Frearson DCJ applied a 10% discount for the utilitarian value of the pleas, and imposed indicative sentences of 16 months for counts 1 and 3, suggesting a starting point of about 18 months and an indicative sentence of two years and five months for count 2, suggesting a starting point of 32 months.
The facts on which Frearson DCJ proceeded note that the offending against the third victim was reported to police in 1989 by the victim and a schoolmate and the offender was charged with an indecent assault offence against the school mate to which he pleaded guilty. The victim of count 3 did not wish to take his allegation further at that time.
The offender was removed from the school and from teaching duties. An indecent assault against the schoolmate was the matter dealt with at Goulburn Local Court by a 556A recognisance in June 1989. The three charges had been laid against the offender in December 2014, and after negotiations, pleas were entered.
Having recounted the facts that were before Frearson DCJ, it is necessary to turn to his Honour's remarks on sentence which also requires consideration of a report of a psychiatrist, Dr Olav Nielssen of 16 June 2016 which was before his Honour.
His Honour recounted the first set of facts and noted that the current offence was agreed to be not isolated, which his Honour said deprived the offender of the benefits that would otherwise derive from an isolated incident. Of course in the present sentencing exercise there is no suggestion that these two matters were other than isolated incidences. He described the offending as being in effect a bear hug with the erect penis against the mid-back for a couple of minutes. As to the second matter the offender had fondled the penis but over the top of his underpants for five or ten minutes when the offender was fully clothed. His Honour described the second count as obviously a more serious incident involving a different type of activity entirely and count two is a serious example of an indecent assault.
His Honour acknowledged that being under authority was an element as his was age but one needs to look at the extent of the authority and the extent of the breach of trust and described this as an extreme example given that the offender was a dormitory master, a Christian Brother and the complainant was in his charge and under his supervision and protection.
He said that each incident presented as opportunistic, the offender clearly embarked on a course of conduct to take advantage of opportunities as and when they arose and realistically preyed on the boys in the Dorm. The facts were replete with hypocrisy in that he had embraced the trappings of the position of the Christian Brothers and used that position to exploit the vulnerable underage boys in his charge and while the facts themselves may be seen to involve quite limited sexual contact, nevertheless they are properly described as sexual predatory behaviour and the other relevance of the non‑isolation incidents relates to assessing his otherwise good character.
His Honour noted that his prior good record and good character was one of the matters that gave him access to the boys.
His Honour summarised a pre-sentence report as showing that the offender was born in Holland and migrated to Australia in 1954 with his family and experienced generally a good upbringing and sharing close relationships with his parents and siblings. The subjective case which was set out in the pre-sentence report and the report of Dr Nielssen as well as in documents tendered on these proceedings and evidence given by the offender before me last week does not contain any contradictions or indications that it is not otherwise a reasonable basis upon which to proceed.
Frearson DCJ noted that the offender had done considerable work towards understanding the dynamics of sex offending and articulating appropriate responses. That it seems is a reference to the fact that in 1994 and 1995 the offender went to the St Luke's Institute in Silver Springs, Maryland, in the United States to undergo a course of competency psychological assessment and therapy over a period of about ten months under the supervision there of Dr Geraldine Robertson, clinical psychologist. His Honour said that he has taken responsibility for his compulsive and harmful offending claiming that he breached his own values and as his Honour noted breached the values of society. He has received extensive sexual offender treatment over the course of many years to address his behaviour and he accepted that he was remorseful and that he has accepted responsibility for his conduct.
A victim's impact statement was provided in relation to the third complainant which was taken into account, but not double counted under s 21A because these are the type of consequences that one would ordinarily expect to be a consequence of this offending. There is, it will be noted, no victim's impact statement in the current matter but as s 25AA(3) notes, the Courts are well aware of the trauma of sexual abuse on children.
Frearson DCJ dealt with Dr Nielssen's report noting the diagnosis of homosexual paedophilia. The diagnosis of the disorder of abnormal sexual interest and homosexual paedophilia was made on the basis of the nature of the offences. He described being acutely distressed and ashamed of his behaviour at the time of the initial matter, that is the matter that was dealt with under s 556A and he recognised that that behaviour was wrong and recognition of that wrong was really a major reason for his depressive illness in the early 1990s. He was assessed as having a low risk of further offending. Dr Nielssen noted that the aetiology of his condition was unclear him having been conceived at a time of extreme starvation in The Netherlands and was part of a much studied generation that developed a high rate of neurological and metabolic disorders, but he did not report early behaviour or intellectual abnormalities.
A matter which was raised by the Crown in cross-examination of the offender was that Dr Nielssen states that the offender did not report being exposed to any kind of sexual interference or experimentation as a child. The Crown contrasted that with the recent history given to Dr Marcelo Rodriguez, psychologist, in which he disclosed that at the age of five while in Holland he was asked to touch the erect penis of an adult male in his father's bakery and also at the age of 12 or 13 he was interfered with by a female nurse while at Royal North Shore Hospital in a frame with osteomyelitis. The history of those two incidents was also given to Mr McDonald, a long‑standing Christian Brother who noted in his reference that the episodes of abuse had emerged during his treatment at the St Luke's Institute in the mid-1990s and also in the report of the treating psychologist at that time, Dr Geraldine Robertson described complex trauma after being sexually abused as a six year old prior to leaving Holland and then again as a patient in Royal North Shore Hospital in Sydney when he was 12 or 13. Although the Crown urges caution about accepting those versions in light of the oblique and perhaps neutral reference in Dr Nielssen's 2016 report I accept that those events did occur and have some effect upon the offender.
Returning to Frearson DCJ's remarks, his Honour said there was nothing in the psychiatric material that precludes the offender from having a very substantial appreciation of the wrongfulness of the conduct and indeed the consequences of the conduct, he well knew he was doing the wrong thing by the boys by sexually engaging with them, those boys having been entrusted to him. His Honour appreciated that he was sentencing him for offences that occurred a long time ago(this was of course being before the introduction of s 25AA) and accepted that it was impossible to work out what was actually happening but generally he accepted that there was a more charitable sentencing regime in light of the less rigid application of Pearce v The Queen (1998) 194 CLR 610.
His Honour took into account that by reason of the delay the offender has been able to demonstrate rehabilitation, and sometimes by reason of delay there should be less emphasis on deterrence. His Honour took into account all the purposes of sentencing but noted that there is always a need for general deterrence and always some requirement for specific deterrence before undertaking the instinctive synthesis of determining an appropriate sentence. He said that denunciation seemed to be particularly important here. People entrusted with underage children must be deterred from indulging their sexual urges on captive children and that conduct cannot be tolerated by the Courts, the community or anyone.
His Honour did not make a specific finding beyond noting that Mr Walsh then appearing for the offender submitted that looking at all the matters, two of the counts were at the very low end, one is certainly less than mid-range and in all the circumstances a sentence of two years or less should be imposed and suspended. That seems to me to be the only reference in his Honour's remarks to a finding of objective seriousness by reference to some notional range to the extent that it may have been considered appropriate notwithstanding the absence of a standard non-parole period. I infer that his Honour accepted Mr Walsh's submissions as to two counts being at the low end and one being less than mid-range of objective seriousness even though his Honour did not specifically use those terms. His Honour rejected the submission that there should be a suspended sentence of two years or less and said that would be an affront to the purposes of sentencing. His Honour said having ordered the head sentence of three years and a non-parole period of 18 months in the light of the indicative sentences referred to and having found special circumstances such finding was made solely on the basis of the sentencing pattern that existed back then.
The subjective material put for the offender in these proceedings contains a number of reports and testimonials. Dr Marcelo Rodriguez interviewed the offender and prepared a report of 14 February 2022. He says that the offender's parents were devout Christians and sent him to a Catholic School where it appears that his time was unpleasant due to the ill-treatment perpetrated by the nuns although he denied sexual abuse at school but he arrived at the decision to pursue a life of celibacy and commitment to his faith before entering the Brotherhood in 1963 at age 18 and he taught as a Christian Brother in a number of schools before being taken from those duties in 1989.
He was then employed in the archives department headquarters in Strathfield for the next 25 years and not permitted to have face to face contact with students and in recent years he had provided voluntary archive work for the Australian Rugby Union. He has never had an intimate relationship and denied having had sex with either adult gender.
His medical history, consistent with a record of the general practitioner, shows a diagnosis of depression in 1990, hypertension in 2010, kidney stones in 2010, back pain in 2011, polyps in the colon in 2015, left hip replacement in 2018, sleep apnoea in 2020 and osteoarthritis in the right hip in 2022.
He said he attended a psychiatrist, Dr Hanson, at St John of God Hospital for seven years and was prescribed an anti-depressant between 1995 and 1998, having been diagnosed with schizoid traits by a psychologist. He believed he was an introvert who avoided conflict and sometimes company, and that the gaol experience was horrific because he was unable to seek any solace as he was always in company.
He continued to attend Dr Geraldine Taylor (nee Robertson) every six weeks by AVL for psychological counselling. He said that she regarded him as cured and unlikely to re-offend.
Dr Rodriguez also diagnosed paedophilic disorder and observed traits consistent with avoidant personality disorder. He received expressions of remorse for the sexual offending. The offender acknowledged that he could not excuse his actions, which he recognised as abhorrent. He did not report the common cognitive distortions often produced by sex offenders that children are, for example, able to have sex before maturity and that they enjoy sexual activity with older people. In addition, he did not manifest an entitled view of himself as a Christian brother.
He completed therapy, as well as many years of self-introspection regarding his offending, which had resulted in a change in his sexual behaviour and averted further sexual offending. He was noted to have a low risk of sexual offending against child victims, that assessment having been made in the absence of a number of risk factors, namely no history of chronicity or diversity of sexual violence, no pattern of sexual violence escalation, admissions to the perpetration of offences, not appearing to support or condone sex offences, not demonstrating behaviour suggestive of psychopathic traits, not having a major mental illness or substance abuse or suicidal behaviour or a history of violence, not having a record for a non‑sexual crime, having an ability to plan and never officially having been a supervision risk once convicted.
There were risk factors present which were taken into account, in that there was a clear pattern of offending, secondary to deviant sexual arousal, a history of child abuse, intermittent experienced problems with stress and coping, as well as demonstrating some deficits in self-awareness regarding offending against young males.
Dr Rodriguez said that a paedophilic disorder is a relapsing condition, although it can be dormant for many years and individuals not offend during such periods. There is no cure for paedophilia. If he is unable to manage his sexual drive he will require prescription of sertraline, an SSRI anti‑depressant.
I have a document described as a letter of remorse from the offender which he adopted in evidence. He is aware that he set a bad example to all the pupils, as well as parents. He is most ashamed of that and he deeply regrets his inappropriate conduct. He says the course of his life since 1989 has occasioned much reflection and readjustment, ensuring that reoffending would not occur. His sexual disorder was an occupational hazard for him personally in the school environment and the shock of his first court appearance was an equal, if not more powerful deterrent.
He notes that those in authority at the Christian Brothers took pains to expose him to therapeutical counselling and medication. In 1995 he was sent by the provincial, Brother Julian McDonald, to the US to undertake a rehabilitation course at St Luke's, there being no equivalent treatment available in Australia. It was a challenging and rigorous course addressing his sexual disorder. Dr Geraldine Taylor was on staff at the time and when she returned to Australia he contacted her after his arrest in 2015 seeking counselling, and on his release in 2018 he had regular sessions with her under the supervision of parole, which continued to the present time.
He says his period in gaol was in every way a most horrendous experience, especially as regards his schizoid psychological trait diagnosed at St Luke's, which causes a marked withdrawal from social engagement and a strong preference for seclusion. Reading of a scholarly and classical type is a prominent part of each day. He does not watch TV and associating with fellow prisoners convicted of similar offences contributed to his re-education, as was the case at St Luke's.
He humbly acknowledges that as regards positive achievements he can boast of no other than his perseverance in a religious life of prayer and observance, his education being self-directed in the form of informal further education and the regard and esteem of those who have lived and worked with him. That regard and esteem is undoubtedly reflected in the large number of testimonials from some well-known figures in the community.
Brother R J Wallace AM, the previous headmaster of Waverley College and St Edmund's College is aware, as are all the referees, of the circumstances of the offending. Brother Wallace has known him for 50 years and says that he has devoted his life without recompense to the education of youth, in particular those from lower socio‑economic groups, and in return for this he is provided with board and keep, but no regular income. He points out that there is no doubt of his remorsefulness of these events, particularly shown by the way he has conducted himself. These charges are very much out of character and given that the experience of these charges relates to events many years ago, there is little or no chance of him reoffending.
He will remain a member of the Christian Brothers, where he will be supervised and accompanied in a way that will both provide support for him but also importantly reduce risk and possibilities of reoffending. He will be provided with counselling and regular support, and his life and conduct since the time of the offence when he has been in the Brothers shows that these events are unlikely to recur. He has shown, according to Brother Wallace, that he can live a useful life practising his profession as an archivist, usually in an honorary capacity taking into account his age.
Dr Bryn Ford from Purdue University speaks in similar favourable terms, having known him since 1989. He describes the behaviour as incredibly heartbreakingly uncharacteristic for the offender, but it should not be overlooked and it should not completely overshadow his kind and decent character, or the many years of quiet service that he has given to the community.
His treating general practitioner since 2020 describes him as a kind, gentle and responsible gentleman, and the offending seems very much out of character to him.
Dr Geraldine Robinson, who was the treating psychologist at St Luke's, says that:
"Brother Obbens' abuse of minors consisted of fondling the genitals just as was done to him on his occasions of abuse. It is not uncommon for abusers to abuse children of the same age as they were when they were abused and in the same manner. It can be understood as repetition of compulsion where the abused child recreates the abuse as an adult but in a position of power. Sexual abuse can become paired with the initial stimulation type of arousal."
She returned to Australia in 1997 to establish an assessment and treatment centre for clergy with sexual disorders and comorbid conditions, and she was the clinical director for 11 years before moving into private practice in 2008. She confirms, as the offender had said, that she was contacted by him when charged with the earlier offences, and she offered him counselling and supportive therapy. She has been seeing him on a monthly basis since 2019.
She says;
I believe Brother Obbens has not offended for many decades and is highly unlikely to reoffend. He is committed to therapy. He demonstrates many pro-social behaviours and attitudes and lives a quiet, restricted life.
She believes his psychological health would be severely impacted by an incarceration sentence and that it would serve little purpose for a man who has lived a careful and productive life since his historical period of offending.
Brother Julian McDonald has known the offender since the mid-1960s as a Christian brother. He was the leader of more than 400 Christian brothers spread across NSW, ACT and Papua New Guinea from 1990 to 2002, and the chancellor of the Australian Catholic University from 1993 to 2002. It was his decision to admit the offender for comprehensive psychological assessment and therapy at St Luke's, and he took that step to ensure that if the offender did have a psychosexual dysfunction it could be addressed by professionals.
Brother McDonald travelled to Maryland to receive a report from the professional team treating him before he was discharged, and he was assured that his psychosexual dysfunction had been arrested and there was a minimal chance of reoffending provided that he continue to closely follow the rehabilitation plan to which he had assented. He says that true to his word he has been meticulous in following that plan since his discharge and he has continued weekly meetings with a support group until such time as staff from St Luke's and his treating psychologist in Sydney confirm that there was no longer a need for him to continue that.
As I have previously indicated, he disclosed the knowledge of the earlier sexual abuse committed on the offender. He says that having been withdrawn from contact with minors more than 30 years ago, he has been involved in supervised clerical positions in areas connected with the administration of the Christian Brothers province and he has carried out his duties with dedication and thoroughness. He says that having served a prison term he has demonstrated genuine repentance for his offences and empathy for his victim, and he is confident that he has been rehabilitated and is not at risk of reoffending.
There is a reference from K E Moroney AO, a former Commissioner of Police, who was appointed in 2018 as the position of Safeguarding Officer to the congregation of Christian Brothers, which required him to work with nominated Christian Brothers whose inappropriate conduct or behaviour had been the subject of legal or congregational sanction. He says he has known the offender for about three years, during which time he has resided at Putney, where he cares for an elderly Christian brother who remains in poor health and he provides companionship and support to that brother for his all too frequent medical and hospital visits. Mr Moroney says that he has been compliant with his safety and care plan. He is confident that he will continue to provide useful service as a Christian brother to that community.
There are further references in similar favourable terms from Mr Peel, from Mr Philip Glendenning AM, who has known him as a work colleague for some 20 years, also from Brother Domenic Brogan, for whom the offender cares on a full-time basis, having known him for some 50 years. He says that the accusations are quite out of character with the person that he has come to know.
From Brother Anthony Wheelan AM, an 80 year old Christian brother, has known the offender for many years and visited him while in custody on a monthly basis. He received his honour for a postgraduate program that he completed in 1996 when researching into the paedophilia of child sex offenders. Having talked in many schools since the 1970s, he says that there are no matters of concern, except for the period at Goulburn involving the offender. He says that his visits to Long Bay over time led him to form a view that the offender had learnt his lessons and he says that since the events in May 1989 at no stage was he a risk. As an avowed religious man he has given freely to lowly backroom work as an archivist over many years in different contexts and that altruistic work includes a social justice centre and for a sporting body, and those comments reinforce the views of Brother Whelan.
The Crown in written submissions puts that the offending falls above the midrange of objective seriousness having regard to factors such as the age of the offender and the victim, that the victim was a boarder at the school who came to see the offender for medical assistance, the offences were highly predatory, the offending involved skin on skin touching of the victim's penis and testicles, although Mr Skinner points out that the facts as to the second offence did not clearly establish that. The Crown concludes in its list of factors going to objective seriousness there was an egregious breach of trust.
I do not accept that the offending falls above midrange of objective seriousness, to the extent that it is necessary to make such a finding, bearing in mind the nature of the offending and bearing in mind also, to the extent that it may be relevant, the apparent acceptance by Frearson DCJ of Mr Walsh's submissions that the offending was either at the low end or less than midrange. The offending was in both the principal offence and the Form 1 offence well below midrange in my view.
There is no dispute by Mr Skinner as to the principles set out by the Crown as to sentencing for this type of offence. Offences of a sexual nature against children are viewed by the courts with the utmost seriousness, and the absolute prohibition on sexual activity with children is intended to protect children from physical and psychological harm caused by premature sexual activity. Children are entitled to grow up free from defilement by sexual protectors and free from risk or psychological upset, confusion and difficulties later in life caused by such conduct.
The Crown points to what was said by the Attorney General on the introduction of s 25AA as to how the current common law rule of sentencing perpetuated a lack of understanding as to how seriously offences should be treated and the purpose of the provision is to ensure that sentences meet the current community expectations, to the extent possible, within the upper limit of the maximum penalty.
As I have indicated earlier, the Crown's position is that the Court is obliged to consider what would the offender's sentence have been had the offences been dealt with in 2016, as the Court referred in Porter v The Queen [2019] NSWCCA 117 at [50] - [54]. The Court must impose a sentence that adequately reflects the criminality of the offender's conduct. It will be apparent, as I have indicated, that I do not accept that the current offences are more serious in nature than those for which he was sentenced in 2016.
I do take into account of course that the sentence was imposed before the introduction of s 25AA.
I bear in mind, as Price J said in R v Cattell [2019] NSWCCA 297 at [162], that "[t]he totality principle should not be used as a cloak of convenience so as to impose a manifestly inadequate sentence" which the Crown says is particularly apposite to the present case, given the limited sentencing options available. That being reference to the fact that the only realistic options are either at full-time custody or a community corrections order, given that an intensive corrections order is not available for this type of offending.
As to delay, the Crown points to what was said by Price J in R v Cattell at [135], namely that "a child sexual offender does not necessarily benefit from an extensive delay in the revelation of offences." His Honour referred to what was said by Hoeben CJ at CL in Hornhardt v The Queen [2017] NSWCCA 186, namely that it was notorious that offending of this kind, by it's very nature causes victims to be reluctant to come forward and make a complaint. Hoeben CJ at CL also noted what was said by Button J in Magnuson v R [2013] NSWCCA 50 at [62], namely 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.
The Crown submits the considerations of delay have little to no meaningful role to play in the sentencing exercise.
The Crown responded to a submission from Mr Skinner that the offender should receive the benefit of good character. The offender has good character in all other aspects of his life but for these offences and those for which he has previously been convicted and the evidence of good character is powerful in ways substantially in mitigation.
That submission by Mr Skinner was put with reference to what McHugh J said in Ryan v The Queen (2001) 206 CLR 267, most conveniently recently encapsulated by Davies J in Bidgood v The Queen [2016] NSWCCA 138 at [59] - [61]. His Honour noted that in Ryan, the appellant had committed more than 50 offences against young boys over a 20-year period. The sentencing judge found that apart from the offending charges, the man was with an unblemished character and reputation but held that the appellant was not entitled to any leniency whatsoever. That approach was upheld in the Court of Appeal but rejected in the High Court. In Ryan v The Queen, McHugh J said at [23]-[25], in considering the use of character in the sentencing process,
It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced.
…
Secondly, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances.
Kirby J said at [112],
… the judge could not justify a complete refusal to attach any significan whatever to such character evidence. Rejection of the evidence as irrelevant to sentencing was therefore a specific error
."
In Bidgood v The Queen [2016] NSWCCA 138, Davies J also referred to what was said in Ryan by Callinan at [178], that
Here the appellant had, for a long time, done many good works. Much of the shine of these was taken off by his gross misconduct in abuse of his office, but not all of it. Character is not, as has been observed, a one dimensional feature of any person. There is no reason why a priest who had conducted himself diligently and helpfully in other respects over many years, and has earned a good character in those respects, should not be treated somewhat differently from a priest who has not conducted himself as to earn good character but had committed the same offences as this appellant.
Callinan J went on to observe that,
The sentencing judge made it clear that he would disregard entirely the appellant's good works. He did so in strong, indeed understandably strong language, but without perhaps the detachment that his role requires. His Honor refused even to find good character at all. So to hold was, in my opinion wrong, and to fail to take some account of the appellant's good character otherwise was an error of principle for correction by the Court of Criminal Appeal. n Bidgood, Davies J noted that the sentencing judge had found that the applicant was otherwise of good character but fell into error by holding that he was disentitled to the benefit of character by reference to the offending for which he was being sentenced.
The Crown's submission concerning the dissipation of that good character is not correct as providing a basis for disentitling the applicant to the benefit of that good character. It is correct only as to putting a view that limited weight should be given to the good character. The present case is not distinguishable from Ryan in the sense that there was continued offending over time in both cases. If the offending over 20 years in Ryan did not have the effect of negativing good character as a mitigating factor, offending in the present case of no more than three months did not have that effect.
I accept Mr Skinner's submission that the evidence of good character in all other aspects of his life but for these offences and those for which he has been convicted is powerful, and not only in ways of mitigation but also substantiates, as a number of opinions have suggested, his low risk of reoffending and his achievement of rehabilitation.
The Crown does not point to any aggravating factors under s 21A of the Crime (Sentencing Procedure) Act 1999 and does not challenge the mitigating factors relied upon by Mr Skinner, namely the plea of guilty and his general expression of remorse, the low risk of recidivism, the rehabilitation, and the need for general deterrence having been largely discharged by the fact that he is being prosecuted for crimes 33 years ago and has demonstrated an ability to comply with the law since that time.
Supplementary submissions addressed principally to the totality question and the first of the matters listed by Price J in Cattell, namely attempt to discern current sentencing practices, produced only a range of five cases set out in the statistics for sentences under this repealed section between September 2018 and March 2021, four of which were dealt with by full-time sentence and one by a Community Corrections order. The only details available for that one case being that it was for one offence only, of the same type with custody and a plea of guilty, the offender having a prior record for sexual assault and related offences.
Mr Skinner also pointed by way of analogy to sentences under s 81 of the Crimes Act 1900, where some 20% of a range of 24 cases were dealt with by way of a Community Corrections order.
The Crown correctly describes the offending as highly predatory, namely involving the manipulation of a young boarder in order to sexually assault him under a pretext of providing medical assessment. The Crown concedes that factors pointed to by Mr Skinner are important considerations in the sentencing exercise, those being the significance of his efforts to rehabilitate himself leading to little need for specific deterrence, and the significance of his age in combination with the issues of totality.
The Crown concedes that the evidence demonstrates that the offender is unlikely to reoffend given that he is unlikely to ever have the opportunity to do so, given his age, prior convictions and current circumstances. However, the Crown submits that these aspects cannot override the other crucial factors which must be accounted for in the sentencing exercise, namely the reflection of the objective gravity of the offences, the need for general deterrence, the recognition of serious harm to the victim, the accountability of the offender and the denunciation of his conduct and the need for punishment.
Ultimately the Crown submits that the offender's subjective case cannot outweigh the objective seriousness of the offending before the Court. The Crown submits that a Community Corrections Order would not reflect the objective seriousness of the offending, community expectations, nor the intention of the legislature in enacting s 25AA.
In R v Cattell [2019] NSWCCA 297, the Court was dealing with sentences imposed in 2019 against a background of the sentences earlier imposed in 1994, 2015 and 2016 for similar offending. Haesler DCJ had sentenced Cattell in 2016, and the sentencing judge in 2019 Grant DCJ, said that Judge Haesler had 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 on the offender." The delay having enabled him to demonstrate that he can lead a law-abiding life in the community which warrants a lesser sentence.
In support of the Crown appeal in Cattell, the prosecutor had put that care had to be taken not to expand the totality principle to the point where it becomes almost meaningless because otherwise this would be contrary to the principle that people who continually offend should have increased sentences. It would not be accurate to describe the offender's behaviour here as continually offending over the years, as illustrated by cases such as Cattell. Rather it was a period of offending over a period of some months in 1989 and 1987.
Price J said in Cattell that:
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.
Those remarks were made in December 2019 and as I have indicated the current statistics only provide a very limited degree of blunt assistance in this case.
To answer the ultimate question, namely what was the totality of the criminality involved in the offending here and to apply the totality principle in accordance with the authorities to which I have referred, and in the light of the sentencing objectives in s 3A and the considerations particularly for sentencing child sexual offenders, my view is that if sentenced for all matters in 2016 there would be no greater sentence imposed than that imposed by Frearson DCJ.
For those reasons the orders that I will make are:
1. The offender is convicted of the offence.
2. Taking into account a discount of 25% for the plea of guilty, and taking into account the Form 1 offence, pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a community correction order for a period of 18 months commencing today.
3. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
1. You must not commit any offence.
2. Appear before court if called upon to do so at any time.
1. Failure to comply with the conditions of the order may result in further action being taken against you. This may require you to return to court to be re-sentenced.
2. The offender is to attend the Registry for finalisation of the community corrections order.
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Decision last updated: 07 March 2022