R v Paul Raymond Evans

District Court of NSW|2019-12-13

Introduction

Paul Raymond Evans ("the Offender") appears before the Court today for sentencing in relation to 2 primary charges and two further charges to be dealt with on a Form 1.
Mr Evans is 68 years of age and has a lengthy history dating back to the 1970's of sexually abusing young males. At various time he was a priest, teacher and boarding master at Boys' Town where he used that position to take sexual advantage of male students attending Boys' Town. Boys' Town was located at Engadine in the southern area of Sydney. It was a residential school for boys which focused on educating disadvantaged and marginalised youth. Students often attended there with a background of social deprivation with behavioural and learning problems.
A sign of the Offender's attitude to the boys attending the school, he stated to Ms Thomson, psychologist (Exhibit A, Tab 11) that: The victims were emotionally needy and clingy… that he believed most of the victims were male prostitutes, hence were sexually experienced.
That statement highlighted the despicable attitude of the Offender. The statement was palpably false and was regarded by the psychologist as "victim blaming". There is no suggestion that SH ("the Complainant") was anything other than a normal 14-15 year old boy who became another casualty of the Offender's loathsome offending.
The Complainant was one of many victims abused by this predator who recklessly abused a position of trust and authority. As the relationship of teacher to pupil is an element of the offence, I have not had regard to abusing a position of trust or authority as an aggravating factor.
In sentencing this Offender it will be for the offending against the Complainant ("the Index Offending"), although his history of criminal convictions is both a troubling and aggravating factor. The Complainant is one of 10 known victims of the Offender.
It should be observed at the outset that the sentence of Mr Evans has been delayed by the fact that he did not initially adhere to the agreed facts and what he had said to members of Corrective Services, including a psychologist. This necessitated the calling of witnesses who would not otherwise be called in a sentence hearing. It also led to extensive cross-examination of the Offender over many days, albeit for periods of short duration. This conduct of the Offender has not assisted the efficient administration of justice and the disposition of this sentence. Whilst it is regrettable, it is not a matter which will in any way affect or aggravate his sentence. It does, however, reflect poorly upon any suggestion of remorse. Even his own counsel was left unable to mount any sustainable submission that the Offender was remorseful.

The Charges

The first charge for sentence (sequence 1) is pursuant to s78N of the Crimes Act 1900 NSW. That is a historical offence which is no longer in force. The description of the offence provided by the Crown is that between 16 November 1986 and 4 September 1987 in Engadine in the State of New South Wales, the Offender did have homosexual intercourse with the Complainant, a male pupil above the age of 10 and under the age of 18 years, namely 14 years.
The second charge for sentence (sequence 3) is pursuant to the same section, and carries the same maximum term of imprisonment of 14 years. There is no standard non-parole period. The description of the offence provided by the Crown is the same as for sequence 1.
There are two charges on a Form 1 document which the Offender has requested I take into account in sentencing the Offender for sequence 1.
The first charge on the Form 1 is sequence 4, described by the Crown as that between 16 November 1986 and 4 December 1987 at Engadine in the State of New South Wales, the Offender did assault the Complainant, and at the time of the assault committed an act of indecency upon the Complainant who was under the age of 16, namely 14 years and under the authority of the Offender. This was in contravention of section 61E(1A). This offence carries a maximum penalty of six years imprisonment.
The second, sequence 5, is a further charge under section 78N, being the same charge as the primary charges for sentence. It carries a maximum penalty of 14 years imprisonment. The offence was described by the Crown as that between 16 November 1986 and 4 September 1987, in Engadine in the State of New South Wales, the Offender did, being a male teacher, have sexual intercourse, namely fellatio, with the Complainant, a male person above the age of 10 years and under the age of 18 years, namely, 14 years, being the Offender's pupil.
By signing the certificate to the Form 1, I confirm that the Offender has admitted guilt and I have taken those charges into account in sentencing the Offender for the charge to which they attach. The charges are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal charge. The Court does so by giving greater weight to 2 elements which are always material in the sentencing process. The first is the need for personal deterrence. The second is the community's entitlement to extract retribution for serious offending (Re Attorney General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146 at [65]).
The Offender was charged on 17 October 2018 and bail was refused. He was serving other full-time custodial sentences in respect of other matters. That sentence commenced on 4 June 2018, with the earliest date for release being 3 June 2020. The Offender has been in custody since being found guilty of multiple offences by a jury in 2008.
There were initially 8 sequences charged, with only 4 certified for this Court. One charge (sequence 2) was withdrawn, and three other charges certified as alternatives. The three alternative charges have since been formally withdrawn and dismissed.The Offender was committed for sentence from the Central Local Court on 2 July 2019.

The Facts

The sentence hearing was delayed and prolonged by reason of evidence given by the Offender. Despite the Offender signing the Statement of Agreed Facts on 20 June 2019 in the presence of his lawyer, over the course of the afternoon of three days (13 December 2019, 18 March 2020 and 19 March 2020) the Offender gave evidence which was at odds with the Agreed Facts and, later, inconsistent with his earlier evidence. At the end of his evidence, the Offender was a witness who was unable to be relied upon at all. He either deliberately lied under oath or, at least, was extremely reckless in answering simple questions.
The Offender identified what he referred to as "embellishments" in the Statement of Agreed Facts. The principal matter with which the Offender took exception was the fact that the Complainant was removed from the dormitory and placed into a separate storage room. The inference was that unless the Complainant cooperated with the Offender, he would not be allowed back into the dormitory.
I propose to summarise the Statement of Agreed Facts. I do not propose to refer to the Offender's oral evidence as any reliance upon it was abandoned by his counsel.
The Statement of Agreed Facts appears at Exhibit A, Tab 4.
The Offender was born 20 October 1951. The Complainant was born 22 September 1972. The age difference between them was almost 21 years.
The offending occurred while the Complainant was enrolled at Boys' Town in Engadine between 1986 and 1988. Boys' Town was an all-boys boarding school operated by the Catholic Church. Boys in years 7 to 10 would reside at the school from Sunday evening through to Friday afternoon, and were able to go home on weekends to spend time with their families.
The offences occurred while the Complainant was a resident in the Middle Dorm ("the Dorm") where the Offender was the Dorm Master.
The Offender was a Catholic priest and employed at Boys' Town as the Middle Dorm master and teacher from 1986 to 1988.
The sleeping area of the Dorm was a large hall of portioned off cubicles that contained three or four beds per cubicle. The Offender also slept in the Dorm, however, he had a private, curtained-off cubicle at the Dorm's entrance.
The Complainant commenced at Boys' Town on 16 November 1986 at the age of 14 years. He left Boys' Town during March 1988, aged 15 years. From the end of 1986 the Complainant slept in a storage room located outside of the Dorm ("the Storage Room"). This was one of the areas of dispute that arose in the course of the evidence given by the Offender. Although this issue consumed a lot of Court time it was of limited or no relevance to the assessment of the objective seriousness of the offending.
Returning to the Agreed Facts, the Complainant set himself up in the Storage Room and used carpet tiles and his single mattress for a bed. He would go to the Storage Room after school each day and remain there until the next morning, only ever leaving the Storage Room to use the bathroom.
The following facts relate to sequence one.
During one night, towards the end of 1986, the Complainant (then aged 14 years) was asleep in the storage room with the lights off. The Complainant woke to the Offender lying beside him on the mattress. The Offender positioned himself behind the Complainant, and was rubbing his penis up and down the Complainant's buttocks. The Offender's penis became erect. The Offender was wearing a brown poncho (also disputed, but I consider this to be of no significance), and had pulled it up.
The facts record that the Offender said to the Complainant "do you want to join my club?" To which the Complainant replied "what club?". The Offender then pulled the Complainant's shorts down, exposing his buttocks. The Offender then said to the Complainant "well, this will affect you coming back into the dorm". This conversation was also disputed by the Offender during the course of his evidence. The Complainant could feel the Offender's penis (bare skin) on his buttocks, and felt the Offender pushing his penis into his anus. The Complainant felt pain and said to the Offender "it hurts". The Offender did not push the whole of his penis into the Complainant's anus but managed to get "the top part of it in". Severe pain was caused to the Complainant, who was pushing his pelvis forward in an attempt to move away from the Offender. The Offender became upset that it wasn't "working", and said "how about we try something different".
The following facts relate to sequence 1 on the Form 1.
The Offender then moved around to place himself in front of the Complainant and put his penis in front of the complaint's face. The Complainant was offended by the smell of the Offender's penis, however the Offender continued to move it in and out of the Complainant's mouth. The Complainant could not tolerate the smell and discontinued the act. The Offender said "Well, I'll have a shower and come back". The Offender left the storage room that evening and did not return. The Complainant felt shocked, confused and devastated by what had occurred.
The following facts relate to sequence 4 on the Form 1.
The following night, the Complainant was in the storage room, and fell asleep with the light on. During the night the Complainant woke up to find the light turned off and the Offender lying next to him. The Offender was wearing a brown poncho (although, again, this matter was disputed by the Offender). He pulled the Complainant's pants down from behind and started rubbing his penis into the Complainant's back. The Offender was holding the Complainant's penis and rubbing it up and down.
The following facts relate to sequence 3, a principal charge for sentence.
Following on from the offending just described in relation to sequence 4, the Offender pushed his penis into the Complainant's anus, which caused the Complainant extreme pain. The Complainant said "I can't do it, it hurts too much". The Offender replied "what if I do it slowly?". The Offender continued trying to push his penis further into the Complainant's anus. The Complainant did not want to do what the Offender was doing to him, but wanted to get back into the Dorm (the fact that he was not in the Dorm was disputed by the Offender). The Offender eventually gave up and left the storage room.
During the same week of that offending, the Complainant spoke with Father Halliday, the principal of Boys' Town. He said that he slept in the storage room and at night Father Paul would lie down behind him and touch him on his backside and try to put his penis inside him. Father Halliday was dismissive, questioning "are you sure?" and eventually stated "I'll look into it".
The Complainant left Boys' Town before Christmas 1986, and returned to his mother's residence over the holiday period. He returned to Boys' Town at the start of 1987, and it was at this time that the Complainant was moved from the Dorm.
The Complainant ceased attending Boys' Town during March 1988. The Complainant did not disclose any details to any person about what had occurred to him whilst he attended Boys' Town until he commenced a relationship with his now-wife during the year 2000. Shortly after that relationship started, the Complainant disclosed information about what had occurred to him as a child. Towards the end of 2017, the Complainant saw a television program relating to a Royal Commission into sexual offences against children at institutions like Boys' Town.
On 11 January 2018, the Complainant attended a police station and supplied a statement in relation to this offending. That statement led detectives to make enquiries with the Salesian Province Centre where it was confirmed that the Offender worked at Boys' Town Engadine between 31 January 1985 and 31 January 1989.
On Wednesday 17 October 2018, at about 12:25 PM, detectives attended the MRRC and spoke with the Offender. He was placed under arrest and cautioned during an interview to which he consented. During the course of the interview the Offender refused to comment on the allegations made by the Complainant.
Those are the Agreed Facts, with some annotations as to the primary matters disputed in evidence by the Offender.

Earlier Sentences in New South Wales & Victoria

On 3 October 2008 the Offender was sentenced to a period of imprisonment of 15 years, with a non-parole period of 9 ½ years, for similar offending, including against other students at Boys' Town.
On 4 June 2018, in the County Court of Victoria at Melbourne, the Offender was convicted for other similar child sex offending and was sentenced to a term of imprisonment of 5 years 3 months with a minimum term of 2 years before being eligible for parole.
Account will be given to those sentences in order to ensure that this sentence is just, having regard to the principles of totality and proportionality. This is considered below.

Victim Impact Statement

Also forming part of Exhibit A (Tab 11) is a statement by the Complainant dated 9 December 2019. The statement refers to the immediate effects of the offending leading to the Complainant being expelled from school before completing his school certificate, and then to ongoing problems he has faced in relation to issues of trust. It has impacted his parenting of his disabled daughter, and also his relationship with his wife. He referred to the guilt and embarrassment from which he has suffered, caused by the conduct of the Offender.
I also have regard to the present understanding of the traumatic effect that child sexual abuse has upon the victim (S25AA(3)).

Sentencing Assessment Report (SAR)

A SAR dated 11 December 2019 was prepared by Kristin Edwards. Attached to the SAR was a Case Note Report prepared by Kara Thompson, senior psychologist of the Hunter Correctional Centre. Ms Edwards had access to the report by Ms Thomson at the time of preparing the SAR. The reports caused the first sentence hearing to be adjourned to a later date, as the Offender took exception with a number of salient matters referred to in both reports. In particular, the Offender took exception to the suggestion that he only entered pleas of guilty to the index charges, but was in fact innocent.
As previously stated, the Offender blamed the Complainant and other victims for his offending. He stated to Ms Thomson that "the victims were emotionally needy and physically clingy". He further added that he believed "most of the victims were male prostitutes, and hence were sexually experienced". There is absolutely no evidence of these matters. It is clear that the Offender approached and forced himself onto the Complainant in an attempt to gain perverted sexual gratification. To even suggest that the Complainant was to blame is offensive and shows how detached from reality the Offender is.
Ms Thomson considered that the Offender carried an average risk range of sexual recidivism.
The report by Ms Edwards was prepared after she had contact with Ms Thompson. The Offender's employment history was unremarkable, characterised only by being employed as a priest within the Catholic Church for about 40 years. He admitted a history of child sex offences against adolescent males. Again, in what could only be characterised as an attempt to shift blame, it was recorded in the SAR that "he attributes his offending behaviour to limited life experiences and the institutionalisation within the Catholic Church". To blame the Catholic Church for his reprehensible behaviour shows how removed this Offender is from the values of the Church and the community generally.
Under the heading "Attitudes", the author recorded a number of matters agreed in the facts with which the Offender took issue at the time of interview. In particular, he denied that the Complainant had been removed from the Dorm and placed in the storage room. He further denied that there was any 'club', as well as any threats or favouritism directed towards the Complainant.
The general tenor of the representations made by the Offender and recorded in the SAR suggests an attempt to downplay his culpability, and blame his offending upon his victims and the environment within which they lived. For example, he described Boys' Town as an "unnatural environment". What made the environment unnatural was the evil conduct of this Offender.
Further, the Offender failed to demonstrate any insight into the impact of his behaviour on the Complainant, stating that "I have no idea how the victim felt". That statement is bizarre and is rejected. It is apparent from the facts that the Complainant suffered extreme pain and would most likely be emotionally scarred by the Offender's repugnant and predatory conduct.
The author of the SAR assessed the risk of reoffending as low, using the Revised Level of Service Inventory. She also, however, referred to the test administered by the psychologist, which demonstrated an average risk of reoffending. I prefer the opinion of the psychologist, who is better qualified to make this assessment.

Subjective Case

The Offender presented a subjective case comprising 8 exhibits and some oral evidence. The oral evidence was of no assistance to his case.
Exhibit 1 was a letter by Nancy Evans, the mother of the Offender, dated 30 June 2019. Mrs Evans recorded that she has kept in close contact since her son went to prison 2008, and that she knows that he is sorry for his mistakes. She had expected him to be home by January 2018 with the intention that he would become her carer. She pleaded with the Court "to send him home soon". Whilst I am sympathetic towards the mother of the Offender, her desire for him to return home is not a relevant sentencing consideration.
Exhibit 2 was a letter from Chris Morrison of McMasters Beach, dated 7 July 2019. He met the Offender about 20 years ago in the Offender's capacity as parish priest. Mr Morrison and his wife were made aware of the charges against him in 2008 and had decided to support him and his elderly mother, as they believed he was of good and sound character. Mr Morrison then referred to a number of activities engaged in by the Offender demonstrating his commitment to the community, mainly relating to the Offender's work as an artist. Mr Morrison expressed that he and his wife do not believe that the Offender would be a danger to society, and that they would recommend that he be reintegrated back into the community. Their qualification to express any such opinion is unexplained.
These untested statements demonstrate the need for greater caution to be exercised by the Court when assessing their value. It seems that neither the Offender's mother nor Mr Morrison were fully aware of the facts at the time they submitted their testimonials.
Exhibit 3 was a letter by Sister Rosemary Terry, who met the Offender in 2008 in her role as Chaplain at Junee correctional Centre. She stated that when she first met the Offender he was an angry man, trying to come to terms with his situation. She talked of his adaptation to life in prison, and the compassion which he showed to other inmates.
Exhibit 4 was a testimonial by Maureen Roast, dated 7 July 2019. She first met the Offender in the parish of St Benard's in Berowra. Later, they moved to Ourimbah and not long thereafter the Offender became their parish priest at Wyong. She trusted the Offender to babysit her three children (two boys and one girl). According to Mrs Roast, her children enjoyed staying in the Presbytery with the Offender. One questions whether she would have taken that risk had she been aware of the Offender's history of sexually abusing teenage males. She described him as a positive and helpful member of society.
Exhibit 5 was a list of artworks undertaken by the Offender. The list was prepared by Mrs Roast. It identified in excess of 119 artworks, some of which were donated for fundraising or for other charities.
Exhibit 6 was a letter from Marie Dyer, dated 9 July 2019. She has known the Offender since he came to Wyong in 1994 as the parish priest. According to her letter, they engaged socially. She talked of the donation of artworks by the Offender to benefit charities.
Exhibit 7 was a testimonial from Ray and Raenor Pinson of McMasters Beach, dated 3 July 2019. They first came into contact with the Offender in about 1990 through their connections with the funeral industry. They referred to him as being professional, dependable, supportive and empathetic. Over the 30 years of their friendship, they found the Offender to be a man of integrity, strong character, absolute honesty, trustworthiness and never wavering in support of others. They stated that he is a good man.
As is often the case in matters such as this, the testimonials provided by the various authors of the documents just referred to are difficult to reconcile with the offending committed by the Offender over a lengthy period of time. It can only be observed that the authors of those testimonials gave their impression of the Offender as they knew him and, whilst they may been aware of his offending, effectively turned a blind eye to the abhorrent behaviour of his child sex offending.
A statement was also provided by Dr Matter dated 16 March 2020. He is a general practitioner who examined the 10 page Discharge Report from Westmead Hospital dated 20 December 2019. He did not examine the Offender. He stated clearly that he is not a kidney specialist. The report is unusual as to form. The author was asked six specific questions. The effect of his opinion is that most of the useful kidney tissue was damaged irreparably or had died, and that if the Offender required dialysis he will require it 3 times weekly for a period of 3 to 4 hours. In answer to a question about life expectancy, Dr Matter said that life expectancy with dialysis is good, but without that the "future is grim".
Dr Matter's opinion seemed to be based upon the extraction by him of what appears to be to "markers", namely GFR and CR. He provided no explanation as to the relevance of this data, yet his opinion seems to be entirely based upon it. In examining the hospital notes, it is plain that the presenting problem was cellulitis of the lower limb.
In my opinion, the report of Dr Matter can be given little or no weight. First, he does not have the expertise to express the opinions which he does. Second, his responses to questions lack the clarity of reasoning which would permit any rational understanding or acceptance of his opinion. The only conclusion that can be drawn from the medical material relied upon by the Offender is that on 10 December 2019 he was admitted to Westmead Hospital, diagnosed and treated for cellulitis of the lower limb, before being discharged on 20 December 2019.
In the hope that a medically-qualified person at Justice Health may be called to make sense of Dr Matter's report and the significance of the blood results referred to in the discharge notes, I direct that a copy of that report with its attachments accompany the Offender's Warrant of Commitment, and be brought to the attention of Justice Health.

Written Submissions for the Offender (OS)

The submissions were marked MFI-1. The following chronology is set out in paragraph 4 of the submissions, illustrating the effect of the two prior sentences. The sentence imposed on 3 October 2008 related to 7 victims over an offending period of some 10 years. The sentencing Judge imposed separate sentences for each count, resulting in an overall effective sentence of 15 years, with a non-parole period of 9 years and 6 months. The non-parole period expired on 24 January 2018. The overall sentence will expire on 24 July 2020 (OS[4]).
The second sentence was imposed on 4 June 2018 in the Melbourne County Court. The period of offending was from the late 1970's to the early 1980's. There were three victims aged between 13 and 15 years old. The sentencing Judge imposed a maximum penalty of 4 years and 10 months, with a minimum term of 2 years. The minimum term expires 3 June 2020. The overall sentence expires 3 April 2023 (OS[4]).
The Offender complains of delay. It is said on his behalf that if the report by the Complainant had been made at an earlier time than there would be no reason why the sentence would not have been imposed at the time of the other Boys' Town offences in 2008 (OS[5]). I assume that the effect of this submission is that he would have received a lighter sentence had the Index Offending formed part of an overall sentence. At the time of the 2008 sentence, section 25AA of the CSP Act had not been introduced. Amongst other things, that requires the Court to sentence an Offender for a child sex offence in accordance with the sentencing patterns and practices at the time of sentencing, not time of the offence.
On behalf of the Offender, it was initially submitted that the offending conduct fell below the mid-range of objective seriousness (OS[16]). In the end, the submission was mid-range. No attempt was made to distinguish between the separate charges for sentence. The submission was founded upon the following factors: 1. the abuse was limited in time (over two nights) and limited in the duration of offending (OS[7]). There is no evidence in relation to the second element of that submission; 2. it was further submitted that the sexual activity was not forced(OS[8]). In view of the Agreed Facts I reject that submission; 3. on behalf of the Offender, it was submitted that breach of trust is a matter to which the Court ought not have regard as the relationship of the Offender to the Complainant is an element of the offence (OS[10]). I accept that submission, and do not find the fact that the Offender abused a position of trust or authority in relation to the Complainant is an aggravating factor; 4. it was further submitted that the age of the Complainant was a relevant factor in determining objective seriousness (OS[11-12]). As the Complainant was about 14 years of age the time of the offending he fell midway in the range of ages covered by this section, 10 to 18 years of age. I do not see this as having any bearing upon the objective seriousness of the offending; 5. in relation to the age differential a statement appears at OS[13] that "at the time [the Complainant] was 14 years old… and the Offender was 21 years of age". That statement was not accompanied by any submission, although I expect that the point sought to be advanced is that the age differential was just 7 years. That statement is inaccurate as, at the time of the offending, the Offender was 35 to 36 years of age and the age differential was just one month short of 21 years. I do not consider the age differential, in this particular case, to be of any significance in determining objective gravity. This is not a case where the Offender was an adult but close in age to the child; 6. it was then said that the offences were committed "opportunistically" (OS[15]). Whilst this may be correct, there is no evidence which would support such a finding. I would, however, accept that there was no evidence to support a finding of organisation and planning beyond that ordinarily attaching to a teacher abusing a student in a boarding house situation.
In terms of any aggravating or mitigating factors, it was submitted on behalf of the Offender (OS[22]) that he had a record of previous convictions. These have been referred to above and are a statutory aggravating factor.
In terms of mitigating factors, it was submitted on behalf of the Offender (OS[23]) that he is unlikely to reoffend, as he has been defrocked and is no longer a Catholic priest. Whilst it was his position as a Catholic priest which enabled him to commit the offending, it was driven by his paedophilic interests and desires, which were unrelated to his position as a priest.
It was also submitted on behalf of the Offender (OS[24]) that I ought to find that he has good prospects of rehabilitation, based upon the testimonials provided to the Court. My reservations about the weight to be attributed to the testimonials have been referred to above. In any event, I do not accept that they speak to the prospects of rehabilitation. Instead, I prefer the psychological opinion of Ms Thompson, who concludes that the Offender is within the average risk range of sexual recidivism, suggesting that the prospects of rehabilitation are no greater than moderate.
The final mitigating factor relied upon by the Offender is the effect of pleading guilty at the earliest opportunity. I accept that submission, and will reduce his sentence by 25%, representing the utilitarian value of the plea.
Special circumstances were contended for on the following grounds: 1. the length of time already spent in custody. I do not consider that to be a proper basis for finding special circumstances as to do so would be to reward the Offender for multiple and repeated offending; 2. steps taken by the Offender to rehabilitate himself during the time in custody. There is no evidence of any rehabilitation of his paedophilic behaviour; 3. the need for supervision upon release. I reject this as being a proper basis for the finding of special circumstances as I find that the ordinary period on parole will adequately provide for supervision as well as rehabilitation and counselling; 4. the needs of his mother who suffers dementia and with whom the Offender will live upon release. I also reject this submission and find that the hardship to his mother does not rise to the level of seriousness which warrants any variation in the standard parole to non-parole period. One thing which the testimonials did establish was that the Offender's mother is widely supported within the community. Those circumstances could not be said to be exceptional.
I decline to find special circumstances on the bases advanced above. I intend, however, to find special circumstances given the Offender's own medical condition and on account of the risk of institutionalisation.
The written submissions advanced on behalf of the Offender then focussed on the question of totality, and referred to a decision of the High Court in Mill v the Queen (1988) 166 CLR 59 at [16].
It was submitted that this decision provides guidance when sentencing an Offender many years after the commission of an offence, where during the intervening period he has been serving a sentence imposed in another state, in respect of an offence of the same nature, committed about the same time. Leaving aside the distinction between that circumstance and the present matter, the Offender submitted that the proper approach "was to ask what would be likely to have been the effective head sentence imposed" had the Offender been sentence in relation to those offences in one jurisdiction and had he been sentenced at the one time.
It was submitted that that statement was endorsed by the NSWCCA in the matter of Green v R [2018] NSWCCA 146 at [15] and [56].
It was submitted that the current effective sentence of the New South Wales and Victoria and sentences was from 25 July 2008 to 3 April 2023, with the Victorian non-parole period due to expire on 3 June 2020. It was submitted (OS[33]) that the combined sentences translated into an effective non-parole period of 11 years 10 months and 9 days, and a head sentence of 14 years 8 months and 9 days, representing a ratio of almost 81% of non-parole to parole. With respect, I do not accept this calculation. The overall head sentence commenced 25 July 2008 and will expire 24 July 2023. The Victorian minimum term will expire on 3 June 2020 That overall period includes 4 months and 10 days whilst the Offender was awaiting sentence in Victoria and participating in a disputed committal hearing.
Reference was then made to the decision of R v Todd [1982] 2 NSWLR 517, in which it was considered that the delay may be significant in the following ways: 1. considerations of rehabilitation during the term of the earlier sentences. There is no evidence which would support this finding; 2. the fact that the Offender may have been left in a state of uncertain suspense as to the latest sentencing. There is no evidence about this; and 3. the fact that the Offender is being sentenced for a "stale crime".
The Offender relied upon those factors as justifying a submission that: the sentence this Court imposes should be either completely concurrent or significantly in the sense of being almost wholly concurrent with the current sentence and such would be a just and proper outcome in relation to sentencing the Offender.
I reject the submission that the sentence should be completely concurrent, or that it should be almost wholly concurrent with the remaining period of the sentence for the Victoria offending. The non-parole period in relation to that offending expires on 3 June 2020, and the overall effective sentence expires 3 April 2023. To accede to the submission advanced on behalf of the Offender would risk rewarding the Offender for multiple offending, effectively obtaining a discount on the basis that he is a repeat child sex Offender. Discrete offending of this type requires the imposition of a sentence which is adequate and which would reflects the criminality involved together with the harm caused to this particular Complainant.
Nevertheless, questions of totality, concurrency and accumulation arise, and will be given proper consideration in formulating the sentence in relation to the Index Offences. It will be necessary to backdate the commencement of the sentence.
The Offender's written submissions were supplemented by submissions in reply oral submissions during the course of the sentence hearing, discussed below.

Written Submissions for the Crown (CS) - MFI 3

The Crown drew the Court's attention to a relatively recent decision of the NSW Court of Criminal Appeal in the matter of R v Cattell [2019] NSWCCA 297. At [123], his Honour Price J set out the approach to be adopted by a sentencing judge when fixing a sentence for an old child sex offence which falls within s25AA, as follows: take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned; determine the facts as now available to the Court; pay regard to the maximum penalty and Standard Non-Parole Period (if any) that applied at the time of the offence; identify where the offence falls in the range of objective gravity of that offence; take into account any relevant aggravating factors and mitigating factors in s21A(2) and (3) of the CSP Act; set a non-parole period in accordance with s4 of the CSP Act as it operates at the time of sentence; and fix the balance of the term of the sentence.
Further, his Honour stated at [125]: The sentencing judge should expressly state that the Offender has been sentenced in accordance with s25AA(1) and that the Court has had regard to the trauma of sexual abuse on the child in accordance with s25AA(3).
Delay was also an issue in the matter of Cattell. After referring to earlier decisions in the matters of R v Todd [1982] NSWLR 517, Mill v The Queen [1988] HCA 70 and Hornhardt v The Queen [2017] NSWCCA 186, Price J found that the sentencing judge in Cattell had overlooked the reasons for the delay in the complaint and the benefits the respondent enjoyed in escaping punishment for the serious crimes that he committed many years before. He stated at [137]: 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 it was special to be with the respondent in the behaviour that involved these assaults.
After considering the wide discretion open to a sentencing judge and the types of considerations that may arise by reason of delay such as rehabilitation, Price J stated: The purposes of sentencing, 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 crime could not be regarded as being subordinate to delay and rehabilitation.
The Crown submitted that there was a near complete absence of evidence of contrition or remorse (CS [21]). Without repeating what is referred to above, the Crown points to the evidence of Ms Edwards and Correctives generally as to the Offender's attitude to his offending. The Offender's suggestion that he was of a similar sexual age and maturity to his victim is unsustainable and rejected. As the Crown pointed out, the Offender gave evidence that the Complainant was happy to go along with being anally penetrated because: well, there was no violent reaction ok? He didn't get up and run away, he didn't try and hit me, he didn't get physically abusive towards me, and that gave me the impression perhaps. (CS [23])
This statement illustrates the delusional, self-justifying attitude of the Offender for his indecent behaviour.
I accept the Crown submission that the evidence, other than the plea of guilty which was to some extent qualified, does not permit a finding of remorse.
In considering the objective seriousness of the offending the Crown identified two relevant considerations. First, that the acts of anal penetration caused the Complainant considerable pain on both occasions. Secondly, that the Complainant was in a powerless situation being deliberately sexually exploited by the Offender, 21 years his senior.
I accept that both of those considerations bare upon the objective seriousness of the offending.
On the question of totality, the Crown submitted that there must be "a substantial degree of what would amount to concurrency with the 2008 offences" (Crown Submissions [40]). At the same time, the Crown emphasised that the objective seriousness of the offending, the need for strong denunciation and the operation of s25AA requires accumulation of the current sentence and non-parole period.
Finally, in relation to the Offender's health condition, the Crown submitted (CS [44]) that there is no evidence that the medical needs of the Offender cannot be met by Justice Health. Reference was made to a decision of Regina v L (17 June 1996) where the Court held: The fact that an Offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances that the case would otherwise require. It is a responsibility of the Executive to provide for the care and treatment of its prisoners: R v Vachalec (1981) 1 NSWLR 351 per Street CJ at [353-4].
Whilst I accept that as a general proposition, I also consider that his health condition may result in serving a custodial sentence being more burdensome for the Offender than for an inmate without his medical condition. That conclusion would warrant a finding of special circumstances.

Written Submissions in Reply for the Offender (OSR) - MFI 4

Submissions were filed on behalf of the Offender dated 12 May 2020, commencing with the following statement: The Offender relies upon the signed Agreed Facts where there is any inconsistency between the oral evidence that he gave on sentence and the Agreed Facts. He confirmed his guilty plea to the offences and acceptance of the Agreed Facts despite some contrary evidence.
Whilst the Offender's evidence represented a considerable departure from the Agreed Facts, I consider it just to sentence the Offender based upon the signed Agreed Facts rather than what he said in Court.
The OSR adopt the earlier submissions regarding objective seriousness of offending and advanced further submissions in relation to special circumstances principally on the basis that the Offender suffers from a chronic kidney disease.
In terms of the sentence contended for, the following written submissions made on behalf of the Offender (iv) (k): The Offender submits that considering totality, all of the circumstances of this case, the delay, the plea of guilty and the Offender's subjective circumstances with the operation of s25AA, the penalty warranted in this matter could have the effect of not extending the Offender's time spent in custody beyond his current sentence, or extending such time by a short non-parole period with the balance of a head sentence to be served in the community
First, I reject the approach suggested by counsel for the Offender that the considerations referred to in the extract above ought to be rolled together to determine the appropriate sentence outcome. Secondly, I also reject the suggestion that the sentence ought to effectively be fully concurrent with the sentences being served as, in my opinion, the criminality of the offending for which he is serving sentences cannot reflect the criminality of the Index Offending.
This submission was raised in oral addresses with counsel for the Offender and was largely abandoned.

Oral Submissions for the Crown

On 14 May 2020 both the Crown and counsel for the Offender addressed the Court on sentence. The Crown largely relied upon its written submissions.
It was submitted (14 May 2020 T 1.37) that the Offender had an opportunity to be sentenced for this matter with the 2008 matters but it was an option he did not take up. Whilst the Crown acknowledged the Offender's right to silence, it was submitted that the matter could have been dealt with back then had he made admissions.
The Crown did not accept the proposition advanced in writing on behalf of the Offender that he ought to be released at the expiration of his current non-parole period, that is 3 June 2020. It was submitted for the Crown that given the serious nature of the offences, together with the importance of general deterrence, there was a need for additional time to be served, both on the non-parole period and head sentence (14 May 2020 T 2.16).
The Crown conceded that the Court should have regard to the fact that there was a period of 4 months and 10 days when the New South Wales non-parole period had expired before the Victorian sentence commenced for which the Offender might, quite fairly, be given credit. I accept submission and I intend to backdate the commencement of the sentence by that period.
It was conceded by the Crown that the commencement date for the sentence might be 24 January 2018, being the expiration of the non-parole period for the New South Wales sentences. In my opinion, as that would result in the Victorian sentence being wholly subsumed and there being no time spent in custody in respect of that discrete and quite separate offending. Such an approach would not achieve an adequate sentence.
Despite my preliminary view that the conduct of the sentence hearing was frustrated by the evidence of the Offender, warranting a reduction in the 25% discount for the guilty plea, I now accept the Crown's submission that a 25% deduction is still appropriate, but that the manner in which the sentence hearing was conducted reflected poorly upon the Offender's contrition and remorse.

Oral Submissions for the Offender

Counsel for the Offender submitted that notwithstanding the wildly inconsistent evidence given by the Offender in the course of the sentence hearing he ought to be sentenced based upon the agreed facts. As I have already indicated, I intend to proceed on that basis.
Counsel for the Offender this time submitted that the objective seriousness for both offences (sequences 1 and 3) fell at the mid-range. I accept that submission and in making that finding, I have taken into account matters raised by the Crown, namely the fact that the Complainant suffered considerable pain on both occasions and that he was in a powerless situation, being deliberately sexually exploited by the Offender, 21 years his senior. Counsel for the Offender was taken to paragraph 16 of MFI 1 in which it had been submitted that the objective seriousness fell below the mid-range. That submission was not pressed (14 May 2020 T7.33).
Whilst it was initially submitted on behalf of the Offender that the offending was limited in time and duration, it was ultimately accepted on behalf of the Offender that the duration of the offending was not particularly significant in terms of assessing the objective criminality (14 May 2020 T6.35).
In the course of addresses, the submission about the age difference between the Complainant and the Offender was corrected. It was initially submitted that the Complainant was 14 years of age and the Offender was just 21. In fact the age gap between them was some 21 years and the Offender was in his mid-30's. Ultimately it was accepted by counsel for the Offender that the age difference of 21 years was of no significance (14 May 2020 T7.26).
Whilst a submission was originally formulated on behalf of the Offender that he was a person of good character, in the course of oral submissions, it was conceded by counsel for the Offender that his client was not a person of good character, notwithstanding the numerous positive character testimonials tendered but untested in the sentence hearing. Counsel for the Offender did not wish to be heard against the proposition that the Court did not intend to place very much (if any) weight on those testimonials.
Counsel for the Offender adopted the submission by the Crown that the sentence ought to commence at the end of the non-parole period for the New South Wales offences (24 January 2018). It was also submitted on behalf of the Offender that the sentence ought to not extend beyond the period of 4 months and 10 days, being the time spent in custody after the expiration of the non-parole period in New South Wales and prior to being sentenced in Victoria. Counsel for the Offender was drawn on whether that would represent an adequate sentence and ultimately accepted that it would not.
In terms of the commencement date, counsel for the Offender was alerted to the Court's thinking in that regard. At T10 (14 May 2020) I stated: My inclination would be to backdate the sentence to sometime between now and the sentence date of 4 June 2018. Maybe a commencement date in 2019 or thereabouts.
Counsel for the Offender was invited to be heard against that proposition, but declined to do so.
Counsel was further informed that the Court intended to give the Offender credit for the 4 months and 10 days spent in custody before the Victorian sentence. Counsel agreed with that approach.
In terms of special circumstances, it was pressed on the basis that the report by Dr Matter demonstrated that the Offender would require extended renal treatment. Dr Matter was a general practitioner expressing opinions outside of his expertise. The fact that there was no expertise demonstrated was ultimately accepted by counsel for the Offender (14 May 2020 T11.29). It was accepted by counsel for the Offender that not much weight could be placed upon the opinion of Dr Matter.
Nevertheless, as I have already said, I intend to find special circumstances based upon the objective material relating to his medical condition.
Counsel for the Offender then returned to the submission that the sentence ought to be a period of 4 months and 10 days "bearing in mind that he spent 12 years in custody" (14 May 2020 T12.10). When asked whether that would result in his client obtaining a discount for serial offending, counsel for the Offender accepted that 4 months and 10 days "might not be an adequate punishment".
Counsel then seemed to abandon that position and submit that a head sentence of 2, possibly 3 years was indicated (14 May 2020 T13.20). Nevertheless it was pressed again by counsel that a non-parole period of 4 months and 10 days would still be appropriate. When challenged as to the substantial variation of the parole to non-parole period counsel ultimately did not wish to be heard against the rejection of that submission (14 May 2020 T13.39).
Counsel for the Offender was put on notice that the Court did not consider a head sentence of 2-3 years to be appropriate but chose not to be heard against that. Indeed he accepted that proposition (14 May 2020 T14.4).
There was then discussion between the bench and counsel for the Offender as to what to make of the delay in prosecution. It was submitted that his client ought not to be penalised for not admitting the offending. That proposition was accepted, as was the proposition that he ought not benefit from the fact that he could have been sentenced for the Index Offending back in 2008 (see generally 14 May 2020 T15).
Counsel for the Offender was informed that the Court did not intend to make a finding of remorse and chose not to be heard against that conclusion (14 May 2020 T15.45).
Further, counsel for the Offender was informed that it was my intention to find the risk of reoffending to be moderate, a finding which counsel for the Offender accepted (14 May 2020 T16.16). It followed that counsel for the Offender did not press the submission that the likelihood of reoffending was low.
Finally, counsel for the Offender did not press the submission that the sentence for the Index Offending ought to be completely concurrent or significantly concurrent with the current sentence being served by his client (14 May 2020 T16.25).

Findings

For reasons exposed in the course of considering the submissions advanced by the Parties, I confirm that I make the following findings in respect of this matter: 1. for both sequences 1 and 3, I find that the objective seriousness of the offending falls at the midrange; 2. the s5 threshold is crossed. That is, that no sentence other than imprisonment to be served by way of full time custody is appropriate; 3. the sentence will be discounted by 25% on account of the guilty plea entered by the Offender; 4. I decline to make a finding of remorse; 5. I find that the prospects of successful rehabilitation are guarded; 6. I find that the risk of reoffending is within the average range of sexual recidivism; 7. I find special circumstances.

Purposes for Sentencing

Section 3A of the CSP Act sets out the purposes for which a Court may impose a sentence on an Offender as follows: 1. to ensure the Offender is adequately punished for the offence; 2. to prevent crime by deterring the Offender and other persons from committing similar offences; 3. to protect the community from the Offender; 4. to promote the rehabilitation of the Offender; 5. to make the Offender accountable for his or her action; 6. to denounce the conduct of the Offender; 7. to recognise the harm done to the victim of the crime and the community.
In my opinion, the need for adequate punishment, general deterrence and recognition of the harm done to the Complainant are the predominant purposes for sentencing in this case.
I am unable to make a reliable assessment as to the prospects of rehabilitation and therefore determine whether there is a need to protect the community from the Offender. Denunciation of the conduct of the Offender and accountability will also be achieved.

Consideration of Earlier Sentences

I have given careful consideration to the remarks on sentence by Hulme SC DCJ (as he then was) dated 3 October 2008 and Judge Gaynor dated 4 June 2018.
There were some 20 counts put to the jury in the trial before Hulme SC DCJ. The jury returned verdicts of guilty on 18 of the counts. The majority of the counts related to indecent assault of a male. There were 5 counts under s78N of the Act regarding homosexual intercourse by a teacher with a male pupil under the age of 18. Those 5 counts (counts 7, 9, 10, 11 and 20) all related to either oral sex, sexual touching or rubbing leading to ejaculation. Whilst I acknowledge that there is no hierarchy in offending for child sexual abuse, the Index Offending against the present Complainant was more objectively serious as it involved penile-anal intercourse. In the 2008 sentence there was a single count of penile-anal intercourse being count 16, homosexual intercourse with a male under 18, in respect of which the Offender was sentenced to 7 years with a non-parole period of just 18 months.
Similarly, the offending with which the Victorian County Court was concerned was, in my opinion, objectively less serious than the present offending.
The criminality of the offending involving the present Complainant is such that it is not possible that an adequate sentence could be reflected in the sentences previously imposed so as to accommodate a concurrent sentence. Counsel for the Offender ultimately accepted that submission. In considering how Hulme SC DCJ approached the sentencing exercise in 2008, it is apparent that he allowed some degree of concurrency as the offending related to individual complainants but accumulation as between each complainant.
For the s78N offences, the learned sentencing Judge imposed head sentences of 5 years and 6 months with non-parole periods of 4 years 6 months. There was significant concurrency between the sentences resulting in a total sentence of 15 years and a non-parole period of 9 ½ years.
A significant point of distinction between the sentencing exercise engaged in by Hulme SC DCJ and in the present matter is that s25AA has since been introduced. It is apparent from his Honour's remarks on sentence that he was constrained by the fact that the sentence imposed in 2008 must have accorded with the sentencing regime that applied at the time of the offence. As a matter of common sense and logic, that means that the sentence imposed in 2008 was a lesser sentence that would have been imposed on the same facts after the introduction of s25AA.

Totality

I am mindful of the fact that the sentence to be imposed in relation to the Index Offending must be just and appropriate to the totality of the offending behaviour. At paragraph [8-200] of the Sentencing Bench Book the learned authors refer to totality and the most recent decision of the High Court referencing the exposition of D.A Thomas in the matter of Johnson v The Queen [2004] 78 ALJR 616 at [18]: In Mill (Mill v The Queen (1988) 166 CLR 59) at [63] Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing at pp 56-57 [footnotes omitted]: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
I am also mindful of the comments made in the matter of R v MAK [2006] 167 A Crim Reports 159 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 discount for multiple offending: R v Knight (2005) 155 A Crim Reports 252 at [112].
Having regard to those principles I consider it appropriate to backdate the commencement of the sentence to accommodate the fact that the Offender spent 4 months and 10 days in custody after the expiration of the New South Wales non-parole period and before the commencement of the Victorian sentence. The backdating of the sentence will also allow for some satisfaction of the principle of totality.

Commencement Date

I decline to adopt the approach in s47(1) of the CSP Act and commence the sentence from the date of imposition. In my opinion it must be backdated. One reason for that is the time held in custody (4 months 10 days) after he would otherwise have been released on parole in New South Wales (24 January 2018). The other reason is to accommodate the principle of totality.
It was conceded by the Crown that the sentence could commence at the expiration of the last New South Wales non-parole period. To do so would completely subsume and give no effect to the sentence in Victoria which related to offending against 3 separate victims.
I informed counsel for the Offender that I intended to backdate the sentence to sometime in 2019. After giving the matter careful consideration, I have determined a commencement date of 4 December 2018. The reasons for doing so are: 1. it permits a period of 6 months which may be attributed to the victims of the offending in Victoria; 2. it takes the Commencement Date as close as can be justified to the end of the non-parole period in New South Wales; and 3. it accounts for the 4 months and 10 days spent in custody not referrable to any specific offending.

Aggregate Sentence

I intend to impose an aggregate sentence pursuant to s53A of the CSP Act. Before announcing the indicative sentences, I confirm that the Offender has been charged and admitted guilt to the 2 charges on the Form 1 document signed by him. The Form 1 charges attach to sequence 1 and, therefore, justify a harsher sentence for sequence 1 than for sequence 3 which are both charged under s78N of the Crimes Act.
In determining the indicative sentences I have taken into account the following: 1. that in 2008, Hulme SC DCJ imposed a sentence for s78N offences involving oral sex of 5 years and 6 months. A departure from that is justified given the greater objective seriousness of the current offending and the introduction of s25AA of the CSP Act. At the same time, however, I acknowledge that the 2008 sentences were imposed after trial with no discount for guilty plea; and 2. that, with the Form 1 attaching, the indicative sentence for sequence 1 must be greater than for sequence 3.
I provide the following indicative sentences: 1. for sequence 1, I provide an indicative sentence of 5 years and 3 months, after a discount of 25% for the guilty plea; and 2. for sequence 3, I provide an indicative sentence of 4 years and 6 months, after a discount of 25% for the guilty plea.

Orders

Mr Evans, you are convicted of the following offences to which you have pleaded guilty: 1. homosexual intercourse by a teacher and pupil with the latter being between the age of 10 and 18 years, in contravention of s78N of the Crimes Act; and 2. a second charge under the same offence provision, that being s78N of the Crimes Act.
In respect of those convictions you are sentenced to an aggregate non-parole period of 4 years commencing 4 December 2018, and an aggregate head sentence of 6 years. You will be eligible to be released on parole on 3 December 2022.
I am required to give you a warning under the Crimes (High Risk Offenders) Act 2006. This applies to particular classes of Offenders in respect of particular types of offending. In your case it applies to serious sex offences as defined in s5 of the Act.
Pursuant to Part 1A of the Act, the Supreme Court has power to make an order for your supervision in the community after you are discharged on parole, which would be referred to as an extended supervision order in certain circumstances which I need not trouble you with today, except to say that it relates to the level of risk which you pose at the time you become eligible for parole.
Similarly, pursuant to the same Part and the same Act, the Supreme Court has the power to make a continuing detention order if you pose an unacceptable risk to the community.
The Court may order your continued detention if there is a high probability that you pose an unacceptable risk of committing another serious offence if not kept in detention.
I further direct that a copy of the report by Dr Matter dated 16 March 2020, with its connections, accompany the Offender's Warrant of Commitment, and be brought to the attention of Justice Health.

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 May 2020

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