117 A Crim R 497
R v Sopher (1993) 70 A Crim R 570
Ryan v The Queen [2001] HCA 21
Source
Original judgment source is linked above.
Catchwords
117 A Crim R 497
R v Sopher (1993) 70 A Crim R 570
Ryan v The Queen [2001] HCA 21
Judgment (2 paragraphs)
[1]
STATUTORY NON-PUBLICATION OF NAMES OF VICTIMS
I am sentencing a man for sexual assaults he committed against young boys 30 to 45 years ago. The man was then a parish priest and the boys were parishioners. The man is now 72 and in very poor health. So the sentencing must take account of the importance of punishing the man for serious offending in breach of trust and the significance as a mitigating factor of his age and ill health.
The man's name is Robert Flaherty. What I should say first are the offences that I am sentencing him for. There are five altogether. They are all offences against s81 of the Crimes Act 1900. Each of them carries a maximum of five years imprisonment. Section 81 of the Crimes Act was repealed in the 1980's. It no longer exists as an offence. Nevertheless, at the time that Mr Flaherty committed these offences it was a crime in the statute books and he breached that piece of legislation in committing the crimes. Section 81, briefly described, is indecent assault on a male.
Mr Flaherty pleaded guilty to three of the five offences. He pleaded guilty at the earliest available opportunity. That is agreed to by the prosecution. So in due course he will receive an appropriate discount for any sentence which I impose. The Court of Criminal Appeal has indicated that if a person pleads guilty at the earliest available opportunity they are entitled to a discount of 25% on their sentence. That law is in place for practical reasons. It encourages people to plead guilty so that the court lists are not clogged up with so many trials that other cases are left unattended to. Also other accused persons or offenders would need to wait much longer for their cases to be dealt with. Hence a plea of guilty is encouraged by an offer of a discount. The plea of guilty of course must be genuine and given in acknowledgment of true guilt.
The other two offences against s81 were not pleas of guilty. Mr Flaherty pleaded not guilty to those charges and he went to trial before me and a jury at Parramatta last year. On 17 September 2015 the jury found him guilty of those two offences. Accordingly, if I have not done already, I formally convict Robert Flaherty of the five offences including the two which the jury found him guilty of.
It is important for a judge in sentencing a person to focus first on exactly what happened and the circumstances of what happened so that the judge can, in the course of the remarks, make an assessment of how serious an example the particular offence was of the crime that was created by Parliament. So I need to say something briefly about each of the offences.
Here I am going to mention the names of the victims of these offences. There were not five victims but three. Mr Flaherty committed two offences against one of the victims and two offences against another. He committed one offence against the third victim. It is important for those listening in Court and listening to these remarks on sentence for them to know that the law protects the identity of persons who complain of sexual assaults. In other words alleged victims or, in a case such this, persons who are in fact victims, are entitled to their anonymity. Their names of course can be spoken in open Court but it is an offence in New South Wales to publish outside the Court anything which identifies a victim unless of course the victim consents.
The first victim is V1. Two offences were committed against him. They were committed between 18 March 1971 and 31 December 1972. V1 and his family were parishioners at Our Lady of the Rosary Church in St Marys. Mr Flaherty was then the assistant priest at that church. In fact he arrived when V1 was aged around 14 years. V1 was very actively involved in the church and sometimes Mr Flaherty would drive V1 home after he had been doing duties at the church. He was a regular attender at mass not only on Sundays but during the week.
There was an occasion around September 1972 when V1 was 15. I am about to describe the first offence against V1. Mr Flaherty was driving him home. He parked the car and asked V1 to touch him. V1 touched Mr Flaherty's penis. V1 also exposed his own penis and then Mr Flaherty masturbated V1's exposed penis with his hand for a brief period but not to ejaculation. The offence against V1 was around the same time Mr Flaherty was talking to V1 about sexual matters. It must be remembered that V1 was aged about 14. Despite being an assistant priest at the parish, Mr Flaherty invited V1 into his bedroom within the presbytery and asked him to sit on his bed. V1 complied. Whilst he was on the bed Mr Flaherty put his hand onto V1's penis over his clothing for a brief period. That is the second offence.
The agreed facts that were tendered as part of exhibit SA and exhibit SB by the prosecution record that V1 complained to a school teacher who in turn told V1's father. V1's father told the church and the matter was taken up by a bishop. The facts record that as a "result the offender was transferred from St Mary's Church" to another church at the end of 1972.
I will move now to the third offence, not the next one in time but the next one to which Mr Flaherty pleaded guilty. The third offence was committed between 4 February 1981 and 1 March 1982. In early 1981 Mr Flaherty had been appointed to act as an assistant priest in Richmond at St Monica's Church. V2 and his family were regular parishioners. V2 was aged about 14. Mr Flaherty invited V2 and his brother and four other boys to stay at a house he had - a holiday house he had in Mollymook. Mr Flaherty drove the boys down. He had a Kombi van. Mr Flaherty determined the sleeping arrangements. V2 slept in a single bed and two others slept in a double bunk. Mr Flaherty slept in a stretcher bed. It was between V2's single bed and the double bunk. Others were sleeping in another room. The facts go on to record that on the "first night before the boys went to bed the offender told a ghost story and then talked about birds and the bees, including masturbation". Then what happened as recorded by the facts is this -
"V2 was awoken during the night by something rubbing his groin area over his sleeping bag. V2 looked and saw the offender, still lying in his stretcher bed, rubbing his hand on V2's genital area. V2 pushed the offender's hand away. The offender replaced his hand and continued rubbing V2's genital area. V2 again pushed the offender's hand away. And this time turned over to face away from the offender."
He stayed there facing away "and was very scared". V2 did not complain for many years. In fact he first complained to his wife in 1996. What I have just described is the third of the five offences of indecent assault on a male against s 81 of the Crimes Act.
The other two offences were committed against the same victim. The victim's name is V3. V3 was the first witness to give evidence in the jury trial last year when Mr Flaherty was being prosecuted for the two offences against him. The offences against him were committed between 2 August 1977 and 16 November 1978. Again then, Father Flaherty had taken some young people down to Mollymook. V3 shared a bedroom down there with Father Flaherty and a boy called Geoff. Again "Father Flaherty slept between both our beds". V3 described to the jury what happened. He said that he "woke up through the night and I had a wet sensation on me penis and I put me arm down to see what it was and I felt somebody's face and he was what I now know was having oral sexual with me". The jury accepted beyond reasonable doubt that it was Mr Flaherty who was the perpetrator. Mr Flaherty "had my penis in his mouth and he was holding the bottom of my penis and he was bobbing his head up and down". Understandably V3, who was then in his early teenage years, did not know what to do, and "I just laid there on me back". I am reading from T8 - T9 of the trial transcript. V3 goes on that "after some time I ejaculated and he wiped the sperm on me". He said he remembered "the sperm landed on me stomach, landing on me stomach and on me - and on me thigh. I remember him playing with the end of me - end of me penis, rubbing his thumb over the top of my penis". That is the fourth offence against s 81 that I will be sentencing Mr Flaherty for.
Mr M Paish, the Crown Prosecutor, then asked V3 what was "the next thing you can recall?" V3 went on to describe that Father Flaherty "then proceeded to roll me over so I was facing the wall". His left leg was straight and his right leg was bent, then he said that "when I was in that position, I remember he lifted my cheek of my bum and I felt something being inserted into my bum". He was wearing his pyjamas. Father Flaherty was behind him when he "inserted something into my bottom".
Understandably, V3 yelled and told him to stop. "Father Flaherty told me not to make too much noise and not to wake my sister up". The next day Father Flaherty "told me words to the effect that I wasn't to tell anybody what happened the night before" (T13). In fact, he went on and "threatened to leave me down there if I was to tell my sister". He went on to say that his "parents would never believe me as he always - as he hears their confessions and that they wouldn't - that my parents wouldn't believe me that what had happened would be true". A couple of weeks later back at church Father Flaherty, in the vestry, asked V3 whether he had told his parents and V3 said he had not. V3 recalls father Flaherty saying, "That's good, let's keep it that way".
Eventually all the men complained to the police. It was many years later. I make no comment at all about why there was such a delay. The law in this State provides that there are many good reasons why a victim of sexual assault may not complain at an early opportunity.
On 2 July 2013 police arrested Mr Flaherty at his home in Wentworth Falls. He was taken to the police station and interviewed. He admitted to some extent the claims made by V1 and V2. He denied the offences which V3 claimed he had committed as well. Hence that led to the trial.
Both V1 and V3 delivered victim impact statements to me last week. In fact V1's victim impact statement was delivered by his sister on his behalf. They were both very moving and stark accounts of how this kind of crime can affect a young boy and the man he later becomes.
V1 said that he started to engage in very anti-social behaviour. It started after the sexual assault on him. He had long periods of instability in his life. He had difficulties in relationships. He was married three times and they broke down. He came to get some counselling in 2003. He felt isolated from his family. He said that, until counselling, "I didn't know how to cope with my emotions". Counselling has helped him to deal with this. It is very commendable that he took this step in order to assist him in dealing with the trauma of the crime that was committed by him. It also, no doubt, took some courage to report the offences and to put together the victim impact statement.
I make the same remarks about V3 so far as the courage to report the offences and to put the victim impact statement together. V3 emphasised the impact on him of the breach of trust. As a boy he was eager to grow up to become old enough to be an altar boy. He wanted to be closer to the leaders of the church who would "help me though life and give me the courage, guidance and determination to succeed in my young teenage years". He was proud that he received awards for religious knowledge in primary school. His next sentence is "How stupid was I?" He went on to say that it was "the leaders of the church that contributed to the mess that my life has become". He became distant from his family, he rebelled against the church, he left school when he was 15 and started binge-drinking. He had a dozen jobs in the first year after leaving school. He recalls how his parents, who were practising Catholics, would "instil in me to trust people that my parents trusted and respected". He said that his parents "would never have allowed my siblings or I to go away on holidays with someone they knew for less than six months unless he or she would wear a white collar because these people guaranteed they could be trusted as they were leaders in the church".
V3 found that he had difficulty in being affectionate in his relations as he got older. He has had over two dozen different jobs since he left school. He went into youth work thinking that he could help, but he "became cynical about the justice system." He saw "kids blamed for what adults had done to them and the adults that did not listen to them." When the Royal Commission into Institutional Responses to Child Sexual Assault was announced, and was continually in the news, he knew he had to do something and he reported the assaults which had occurred against him. He says that he has "trust issues." He said what happened "has robbed me from having a faith", asking rhetorically how he can have "faith in a church that allows a known paedophile to move from parish to parish giving them a brand new playground of vulnerable children."
Offences such as these, committed on a teenager, can lead to moments of anguish at ordinary times in their lives. V3 gives a simple example. He says that it is "unavoidable trying not to think of him as over the years whenever I see a kookaburra, I think of him. We fed a few kookaburras down at his holiday house but now it doesn't matter what mood I am in when I see a kookaburra the shame and guilt and anger rise to the surface."
These victim impact statements illustrate why Parliament regards the offences as so serious. Indeed, Parliament now regards the kinds of crimes committed by Mr Flaherty 30 to 45 years ago as more serious if they were committed now. I must of course sentence Mr Flaherty according to the law that he broke when he committed these crimes, not according to the law as it is now which he has not broken. In those days, the maximum sentence for each of the five crimes he committed was five years imprisonment. Even then when the sentences were, relatively speaking, more lenient for these kinds of crime, Parliament regarded them as so serious that it would expose an offender to some years imprisonment for these sorts of crimes. The victim impact statements illustrate graphically why Parliament took that view.
Mr Flaherty, after he was arrested, had no time in custody. I now need to make some assessment of how serious an example of the offence each of the crimes is. Obviously two persons can commit the same crime, but one person may commit it in a far more serious way than the other person. The same goes for one offender who commits the same crime against different victims. One of the crimes might be a very serious example of that offence. Another crime might be a far less serious example of the same offence. That is the sort of assessment I need to make.
The first offence against V1 was not at the lowest end of seriousness for this sort of crime. It was not for a number of reasons. Two of them are that Mr Flaherty touched V1's exposed penis. In other words there was flesh on flesh and Mr Flaherty's actions encouraged an arousal on V1's part but to a limited extent. The second aspect, which applies to all of them, is that it occurred in circumstances involving a very serious breach of trust by a priest against one of his parishioners; not only that, but a parishioner who was a teenager. It is far from being the most serious example of this sort of crime and would be towards the lower end but not at the lower end.
The other offence against V1 was towards the lower end, or towards the lowest end. He put his hand on to V1's penis over his clothing. Again, there is the factor of the breach of trust which is an aggravating factor but there was not the aspect of skin on skin touching.
The offence against V2 is probably in the same category as the first offence against V1. It was committed against V2 when he was sleeping. He woke up to feel the priest rubbing his groin.
Despite V2 pushing his hand away Father Flaherty replaced his hand and continued rubbing the genital area. V2 had to push his hand away again and turn away. Although it did not involve skin to skin contact it was the persistence in the activity and the fact that it was committed against a sleeping boy causing him to wake up that to my mind makes it about as serious as the first offence against V1.
The two offences against V3 are in another category. Mr Paish argued that both of those crimes "would be at the upper level of seriousness for acts covered by s 81." (I am reading from the third page of MFI #14, which were Mr Paish's written submissions on sentence.) I have just noticed that, in fact, Mr Paish submitted that the three other offences, the ones against V1 and V2, "would be towards the lower level of seriousness." I accept that submission, but I regard the first offence against V1 and the offence against V2 as being relatively more serious than the second offence against V1.
I also accept the submission of Mr Paish that the two offences committed against V3 are in the upper level of seriousness for those crimes, both involved penetration. The act of sucking the boy's penis was committed against him whilst he was asleep. The action woke him. The offender persevered until the boy ejaculated. In fact V3 acknowledged that it was the first time he had ejaculated so that the experience was new to him and unfamiliar.
The second act occurred shortly after the first. Again it was an act of penetration. Again it persevered. In fact, V3 said that he first felt something inserted into his anus and then something larger inserted into his anus. He, nor I, can say what it was, or they were, that were inserted into his anus. But again it was an example of persistent offending after the first offence and committed, as both were, in very serious breach of trust. V3 was down at Mollymook with Mr Flaherty because his parents had complete trust in the priest with whom they allowed their children to travel and with whom they allowed their children to stay overnight. In breach of that trust placed in him by the parents and by the children he committed two very serious crimes against V3.
It is important for a judge not only to take into account the seriousness of the crimes that happened, but also, of course, the personal circumstances of the offender. This becomes obvious when one thinks about it for a moment. One offender might have a long record for similar offences. Another might have committed the offences for the first time. One offender might have a very serious mental health problem, another offender may not. An offender might have committed offences when they were on bail, another offender might not. So it important to consider the personal circumstances of any offender, including Mr Flaherty.
Here Ms L Rowan, who appeared for Mr Flaherty in the trial and the sentence proceedings, has provided a good amount of material. I should say the first item was, in fact, tendered by the Crown as it was a Pre-Sentence Report which is usually put into evidence by the prosecution. The Pre-Sentence Report was helpful. It recorded Mr Flaherty's relatively stable upbringing and his entry into the seminary at about aged 17 and his early years in his priestly life, including some difficulties which he encountered. In fact, it recorded that Mr Flaherty's brother commended him for his "generosity towards less fortunate parishioners, which included providing his residence in Mollymook to families for holiday use." I do not say that critically. I say it because it is an aspect highlighted by his brother of generosity. Of course, he breached the trust in these cases.
The report noted that Mr Flaherty retired in 2010. It acknowledged that he had been moved away from a parish once the offences were reported, or at least one of the offences. The report noted that Mr Flaherty "presented with little insight, commenting that he thought the first victim had been cooperative and that he did not think it would have the impact that it did. The report said that Mr Flaherty frequently disassociated himself from the offences, speaking of the offences in broad terms as an issue across the organisation for which he worked."
The author of the report assessed Mr Flaherty as a medium to low risk of re-offending. I, myself, would think that at this stage and age and in poor health, that his risk is very low. It noted documents, medical reports, pointing to the significant health issues. He lives alone and has a "largely solitary existence." He showed "little victim empathy". The author could see a few treatment options which would be of benefit. Supervision would be unlikely to be of any benefit and he is unsuitable for Community Service.
There is a psychological pre-sentence report by a senior psychologist with Community Corrections. Again it noted his lack of insight or empathy for the victims of his crimes. The "dynamic risk issues that were present at the time of the offence are most likely no longer present given there has been no sexual re-offending or new charges over three decades, based upon the information provided." He would not be a priority for sex offender programs. It is recommended that is "not involved in any child related work."
I return to the material presented by Ms Rowan on behalf of her client. There is a report from a Dr Sasikaran, a consultant geriatrician, dated 27 January 2015. It lists a series of problems. There is a chronic pain syndrome, there is depression, social isolation, obesity and chronic renal failure, although that is stable. There is cardiomyopathy, again that is stable. Mr Flaherty has type 2 diabetes and hyperparathyroidism. There is a goitre issue and he has sleep apnoea. There is a prostate problem, but a question about whether there is any malignancy. He is taking a wide range of medications. At that stage his main problem was his chronic pain. That doctor was "concerned about his future". He was concerned about him being imprisoned and recommended leniency "considering his multiple medical and psychological problems."
There is a consultant physician and cardiologist, Dr John England, who has provided a number of reports about Mr Flaherty. In one report, which was on 6 August 2015 and became exhibit 2, Dr England described Mr Flaherty's prognosis as "guarded in terms of months to years." Dr England thought Mr Flaherty had "moderate frailty and vulnerability." He has had a number of falls, one of which meant that his sentence proceedings were delayed. His vascular disease will be accelerated by his chronic renal failure and hyperglycaemia." Medication means that when he falls he has difficulty getting up again. Dr England thought that if in a custody situation "he will need to have intensive nursing care and regular" consultations with doctors. His mental health will be affected if he was to be in custody. He thought that Mr Flaherty would be "at risk of self-harm and a certain risk of suicide or sudden death." More specifically, he felt that Mr Flaherty's "prognosis is six-12 months regardless of any medical intervention." He noticed a general decline in Mr Flaherty's demeanour. This was in the report, exhibit S3 dated 14 September 2015, from which I have been quoting.
An MRI of the brain "shows disease and atrophy close to the hippocampus region of the brain which is linked to vascular debenture and Alzheimer's disease."
He provided a report of 23 November 2015, as exhibit S4, about the fall which he had last year.
There is a report dated 19 November 2015 from his GP, Dr Anthony Lee, which lists a large number of current medications taken by Mr Flaherty and the past history of a large number of conditions.
Mr Flaherty was sent to the forensic psychologist, Tim Watson-Munro, who provided a report dated 18 February 2016 which became exhibit S8. Mr Watson-Munro noted that Mr Flaherty was "clearly physically and mentally ill." When interviewing him Mr Flaherty "impressed as a very unwell man who had great difficulty at times in following my line of questioning with inappropriate affect, as noted by the other practitioners." He also appears to be a "very depressed and anxious man who lives a very lonely life." His exposure to the "realities of the criminal justice system has been highly traumatic." Mr Watson-Munro stated "with some certainty that Father Flaherty will have an exceptionally difficult time in custody." Because of his age and the nature of his offending and his general vulnerability he will no doubt go into protection and, Mr Watson-Munro thought, "it is unlikely that he will receive the type of specialist care he is currently obtaining." Mr Watson-Munro thought "it may well be the case that his demise is hastened by a term of imprisonment." He also doubted that Mr Flaherty "would respond in any meaningful way to psychotherapy" because of his cognitive limitations.
Finally, Ms Rowan tendered as exhibit S9 a letter from Mr Flaherty dated 2 December 2015. He acknowledged the fairness of the trial and the integrity of the jurors and their decision. He went on to say that he "cannot recall the assaults of which I have been found guilty. If these took place I express my sincere apology to V3 and his family."
Mr Flaherty has no criminal convictions and that is a matter which can be brought to his credit in the sentencing proceedings. Any person presenting before a Court without any criminal convictions has that benefit. I think that it is unlikely that Mr Flaherty will offend for the medical or psychological reasons expressed in some of the reports.
There is an issue about whether exhibit S9, the letter of apology, could amount to evidence of remorse. Mr Paish took exception to its tender in the first place. I permitted it to be admitted, but realistically Ms Rowan acknowledged that it cannot be evidence of remorse. As she asked rhetorically, how can her client "be sorry for something he doesn't remember doing." She realistically said that the apology is the best he can do given his limited capacity. She acknowledged that the letter is not evidence of remorse. I think she is correct in that submission. It does not go against him that he has no remorse, but he does not have the benefit of being able to express remorse. That is partly because, as Ms Rowan said, he lacks the capacity to express remorse.
I was assisted by both counsel providing written and oral submissions about the appropriate sentence. Mr Paish's submissions became MFI 14. At all times Mr Paish submitted Mr Flaherty was an ordained Catholic Priest, active in the church in which the victims were either attendees or alter boys.
There is an obvious issue here about sentencing a person for offences committed many years ago. The issue has been dealt by the Court of Criminal Appeal. The leading case is R v Moon [2000] NSWCCA 534; 117 A Crim R 497. Fitzgerald JA agreed with Howie J. Howie J, with respect, very helpfully addressed the issue of sentencing in the present day for offences which were committed many years ago against a now repealed law. His Honour at [67] said that the first issue is that the "Court must have regard to the maximum penalty for the offence at the time when the crime was committed." His Honour said that that will "indicate the policy of the legislature at the time the offence was committed." I have already remarked that Parliament regarded the crime as so serious that it attached a prison sentence to the crime of a maximum of five years. His Honour reminded sentencers that the "maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed." His Honour went on in the following paragraph to observe that the "Court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls." That is why I made the findings about how serious the crimes were that Mr Flaherty has committed. His Honour said that such a finding "will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie." His Honour commended that approach when "sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of the offending can be established."
In Moon's case the offensive behaviour involved mutual masturbation and in one case putting the offender's penis between the victim's buttocks. Howie J observed that the sentence imposed at first instance "falls in the upper range of sentences for offences under s 81, notwithstanding that I would expect sentences in this range to involve more serious conduct than that committed by the applicant." His Honour went on to observe that "offences including some form of penetration or offences by persons in trust" were examples of more serious conduct. In Moon's case there was a plea of guilty as well. (The last quotation was from [75].) At [81] his Honour summarised why he would allow the appeal and quash the sentence and substitute a lower sentence. He said that "in a case such as this where there has been such a lengthy delay between offence and sentence, and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct".
Mr Paish drew my attention to his Honour's remarks in Moon's case. Mr Paish went on to say that the Crown "has insufficient material to establish a sentencing range for this offence between 1972 and 1981". He went on to submit, however, that the Crown "does not concede that had the offender been sentenced in 1981 he would have stood a reasonable chance of obtaining a non-custodial sentence". Mr Paish submitted that when the "combination of the maximum penalty and the actual sexual acts are considered, the objective seriousness of the crimes require fulltime sentence".
Mr Paish emphasised what he described as "one central aggravating feature". That was Mr Flaherty's position as a Catholic priest. It was through that role that he gained access to his three victims and "in a position of special trust was able to commit these offences under the noses of their respective families". He even went on in V3's case to use his position "to silence the victim by telling him he would not be believed by his own parents due to the position of trust that the offender held".
Mr Paish reminded me of remarks of various Justices of the High Court in Ryan v The Queen [2001] HCA 21; 206 CLR 267 and I must therefore bear in mind that although there is limited evidence of Mr Flaherty's good character it must be borne in mind that his character provided a vehicle for him to commit his offences.
Mr Paish submitted that the offences must be punished by a period of fulltime in custody.
Ms Rowan too took me to the case law about sentencing for historical sexual offences. She drew my attention to the decision of the Court of Criminal Appeal in Magnuson v The Queen [2013] NSWCCA 50. Button J delivered the judgment of the Court and Ms Rowan reminded me of the principles which his Honour summarised from [83] onwards. His Honour observed at [91] that "the statistical material provided to her Honour demonstrates that the offence of indecent assault, including against children, was dealt with more leniently many years ago than it is now". His Honour referred to statistics from the 1970s indicating that a fewer than half the number of offenders were given sentences of fulltime imprisonment. They are of course statistics and we do not know the details of the offending behaviour. His Honour made observations at [145] about the non-parole period generally being shorter in those days.
Ms Rowan submitted that "the present case is on all fours with that considered in Magnuson". She did not concede that "only a fulltime custodial sentence is appropriate". She acknowledged that ordinarily a custodial sentence would be appropriate. It is neither necessary nor inevitable in every case. She urged me to take into account the discount which is appropriate for the pleas of guilty and the fact that the V1 and V2 matters could have been dealt with summarily. She acknowledged the significance of the breach of trust and the limited impact of any good character. She too reminded me of the remarks of McHugh J in Ryan's case.
There is some extra curial punishment in the fact that Mr Flaherty's status and privileges as a priest have been withdrawn. I do take that into account in a limited way.
Ms Rowan referred me to the Court of Criminal Appeal's decision in R v Sopher (1993) 70 A Crim R 570. The Court delivered a joint judgment acknowledging at 573 the following -
"Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances".
Their Honours said that an "appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life".
Ms Rowan took me to cases which deal with offenders who may effectively receive a life sentence because of their advanced age or disability. In R v Mammone [2006] NSWCCA 138 the Court acknowledged at [45] that "the advanced age of the respondent entitled him to some discount in sentencing, on the basis that serving a term of imprisonment will be more than usually onerous for him". Ms Rowan reminded me that I cannot "overlook that each year of a sentence of imprisonment may represent a substantial proportion of the life left to an offender". She reminded me that what was said by the Court of Criminal Appeal in Pfeiffer v R [2009] NSWCCA 145 at [15] that where the "health problems of an individual offender are such that his or her life in prison will be more burdensome than for a healthy person, it may be appropriate to reflect those considerations in a reduced sentence". She referred me to Barton v R [2009] NSWCCA 164 where the Court at [22] referred to a principle that "may in the case of an offender of middle to advanced years have the practical effect of a life sentence".
Ms Rowan reminded me of her client's physical disability and chronic illnesses and argued for special circumstances if I do impose a custodial sentence. She reminded me of the significance of delay combined with the considerations of ill health and her client's age. She reminded me of the prognosis of six to 12 months.
Mr Paish on the other hand pointed out that that is a prognosis which may or may not come to be realised. Ms Rowan reminded me that delay was not the fault of her client.
I come now to consider the appropriate sentences for these offences. So far as the first offence against V1 and the offence against V2 are concerned, I have said that they are more serious examples of this crime. I would regard in each case a sentence of one month imprisonment as being appropriate. The second offence against V1 was less serious for the reasons that I have given and in the ordinary course I would have imposed a good behaviour bond for what occurred.
I repeat, the offences committed against V3 are more serious. I have accepted Mr Paish's submission that they are in the upper range of seriousness for these kinds of crimes. Although he submitted that it is difficult to imagine a form of sexual assault or indecent assault more serious than the two examples of penetration which occurred in this case, I would not regard it as a worst case; but I do regard them as serious offences. I think that a starting point for each of them is a sentence of four years imprisonment.
However, it is here that first I must take into account that for the offences committed against V1 and V2, Mr Flaherty pleaded guilty at the earliest available opportunity. I would therefore reduce each of those sentences from one month imprisonment to three weeks imprisonment.
Having regard to an appropriate starting place of four years imprisonment for the serious offences committed against V3, it is here that I come to balance the "criminality of the conduct ...and any damage to health or shortening of life" as the Court of Criminal Appeal said in Sopher at 373.
Despite regarding an appropriate sentence as one being four years, I would reduce that sentence because of the obvious fact that Mr Flaherty is going to have a much harder time in prison and because of his age, to one of two years imprisonment for each of the offences.
Ms Rowan asked me to consider suspending the sentences. That in a sense has been the significant issue in these sentence proceedings. Should I send Mr Flaherty to fulltime gaol for the crimes which he has committed - especially against V3 - or should I fix a prison sentence but suspend it?
To my mind the offending behaviour against V3 is such that it would not be appropriate to allow Mr Flaherty not to serve some full time in prison. In other words, I think that the sentence of imprisonment of two years which I have in mind for Mr Flaherty should be a sentence of fulltime imprisonment. I will come shortly to the different question of his non-parole period.
Because he has committed offences against different victims, I am going to fix the various sentences to be served concurrently. The overall sentence will be one of two years and three weeks. It will commence today, 25 February 2016. It therefore will expire on a date two years and three weeks after today's date. In due course we will work out what that appropriate date is going to be.
I think the real impact of the state of Mr Flaherty's health and age, particularly the prognosis given to him by Dr England and the impact of the prison sentence which Mr Watson-Munro thinks it will have on him must be reflected in the non-parole period. I am going to fix a non-parole period of six months which will commence today 25 February 2016 and which will therefore expire later this year on 24 August 2016.
Now I just pause from my remarks on sentence there. I should add there are special circumstances for the non-parole period being significantly shorter than that envisaged by the Crimes (Sentencing Procedure) Act 1999. Those special circumstances are the state of Mr Flaherty health and the observations by medical practitioners and Mr Watson-Munro about the impact of prison.
HIS HONOUR: Now I need to calculate when the expiry date of a prison sentence of two years and three weeks will be.
ROWAN: Your Honour my instructing solicitor's done the maths. 17 March 2018.
HIS HONOUR: Would you mind checking that Ms Latimer. It sounds right to me. I think that's right. That's 21 days. Do you agree?
LATIMER: I do your Honour.
HIS HONOUR: So let me get this right.
I am going to impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act. I would have imposed a sentence for the offence against V1 of two weeks and a sentence for the offence against V2 of one week. As I said, I would have imposed a good behaviour bond in respect of the second offence against V1. The sentence for the offences against V3 would be two years and served concurrently, that is because they occurred on the same occasion and against the same victim. Each of them warranted a sentence of two years imprisonment but the fact that they occurred at the same time means that they can be served concurrently. I would fix a non-parole period of six months which commences today 25 February 2016 and expires on 24 August 2016. The overall sentence would expire on 17 March 2018.
Mr Flaherty I have to sentence you now. I sentence you to a sentence of two years and three weeks imprisonment. The sentence will commence today 25 February 2016 and will expire in two years and three weeks' time, namely on 17 March 2018. I fix a non-parole period during which you must be imprisoned of six months. It too starts today 25 February 2016 and it will expire on 24 August 2016. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing your release on parole on 24 August 2016.
So Mr Flaherty I deliberately did not ask for the Correctives to come in beforehand but I should check are they still here. Good they are coming up thank you very much. Shortly Corrective Services officers will arrive and they will take you into custody. In a moment I will leave the bench so that you have an opportunity to talk to Ms Rowan and Mr Benetatos before you are taken into custody. You will commence your custody today and you will be released on parole on 24 August 2016, that is in six months from today.
HIS HONOUR: Conditions of parole? Good behaviour really and notifying the Court of his address. I do not think anything else Ms Latimer, I do not think he needs supervision, do you agree?
LATIMER: When your Honour was reciting the facts for the counts 2 of V1 your Honour indicated that he was 14 years at the time, he was 15 years at the time according to the facts.
HIS HONOUR: Fifteen.
LATIMER: Just a slight correction there your Honour and can I just double check your Honour the indicative sentences for V1.
V1 the first offence is two weeks, it's an indicative sentence of two weeks and for V2 the only offence is one week. They are cumulative. The first starts today, the second would commence in two weeks' time and then the sentence of six months for the offences against V3, two years commencing in three weeks' time. Hence the overall aggregate sentence of two years and three months.
LATIMER: Yes and the indicative sentence in relation to the second V1.
The second V1 that's a good behaviour bond. So I should impose that in respect of the second offence against V1 under s 9 of the Crimes (Sentencing Procedure) Act instead of imposing a sentence of imprisonment I direct that Mr Flaherty enter into a good behaviour bond for 12 months.
LATIMER: I don't know whether your Honour needs to actually make that order given you've given an aggregate sentence.
HIS HONOUR: No it's not part of the aggregate sentence because it's not a sentence of imprisonment. I think I'm right am I, s 53A?
ROWAN: I think that's right, your Honour.
HIS HONOUR: It said aggregate sentence of imprisonment.
LATIMER: I think you mentioned the first offence was V1, that was my confusion, your Honour.
HIS HONOUR: How does he enter into the good behaviour bond, does he do that in custody?
ROWAN: He can do that in custody as I understand, your Honour.
HIS HONOUR: Yes, Ms Rowan.
ROWAN: Your Honour, the sentence having been handed down, I would like to be heard on the question of bail. Your Honour heard during the submissions on sentence that a notice of intention to apply for leave to appeal has been lodged with the Court of Criminal Appeal. That indeed was lodged.
HIS HONOUR: Is that a leave to appeal from conviction?
ROWAN: Section 62 of the Bail Act 2013 applies. So that I'm not catching my friend unawares, it's very short s 62.
HIS HONOUR: Thanks, let's have a look.
LATIMER: What was the section?
ROWAN: 62, Bail Act 2013 -
"A Court may hear a bail application for an offence if:
(a) the Court has convicted a person of the offence; (b) proceedings on an appeal against sentence or conviction are pending in another Court; and (c) the person has not yet made his or her first appearance before the Court in the appeal proceedings."
HIS HONOUR: So it's a notice of intention to appeal against the convictions.
ROWAN: Yes your Honour, and that was lodged on 25 September 2015 and indeed as Mr Crown pointed out during the submissions it was already showing up on the database. Obviously there hasn't been a first appearance at this point in time, but in my submission the appeal proceedings are engaged and accordingly he would fall within the criteria of s 62 for the consideration of the question of bail. It then becomes a matter for your Honour as to - because it does say the Court may consider.
HIS HONOUR: Is there any statutory guidance to the considerations relevant to bail - appeal bail?
ROWAN: Not that I could find. It's safe to say, your Honour, that I accept it is in fairly unusual circumstances that appeal bail is given. However noting the non-parole period that your Honour has imposed, and as we know judicial notice of the length of time that an appeal takes were he not to have bail during that process, then the sentence will be effected by the time we get to the hearing of the appeal, and that's combined with the medical evidence which your Honour already has.
HIS HONOUR: All right, let's just take a step back. Did you know about the application, Ms Latimer?
LATIMER: No your Honour, I didn't, but I did foreshadow a potential bail application in the sense that this section may be raised. The Crown's position is that an appeal is not on foot, it is not pending. Only a notice of intention to appeal has been filed and therefore this section would not be operative.
HIS HONOUR: I'll tell you what I'm thinking, both of you, that I would hear you to try to determine that (a) we've got a question about whether s 62 is engaged or not. You say it is, you say it's not. I would like someone to look it up for me and find out whether it is or isn't. (B) Then there are the criteria about determining appeal bail. My recollection is there's some law about that, applied either at first instance, which I am, or by the appellate jurisdiction, and there's some assessment made of the prospects of success, that's my recollection. I had to determine appeal bail in a case where an offender was convicted I think late in 2014 after a trial, and defence counsel took me through various issues from memory, including the prospects of success and things like that. In other words I don't think it's something which I just decide because your client is at an advanced stage and in poor health.
For example, another factor would be the relevance of the sentence. He's got a non-parole period of six months. That's obviously a relevant factor. I remember now, I think I asked defence counsel to find out when the appeal was likely to be heard. I mean obviously I need to have this information. I mean I would consider giving your client bail overnight for this to be argued tomorrow, and I need it to be argued tomorrow because I am then on leave for quite some time.
ROWAN: I can accommodate that, your Honour.
HIS HONOUR: So either you or somebody replacing you needs to argue it tomorrow and you need the information.
LATIMER: Your Honour, the only difficulty I have with that is that if s 62 is not engaged, then your Honour has convicted the offender and he must go into prison today.
HIS HONOUR: Yes, all right.
LATIMER: It's a complicated issue, but from my
HIS HONOUR: Let's have a look at it then. So you say I need to look at that now? So I look at that issue now and the merits of it tomorrow if I decide against you and in favour of Ms Rowan. So you're saying I really have to decide.
LATIMER: Yes your Honour, and I'm not necessarily in a position to deal with this particular issue myself in terms of case law and statutory assistance to your Honour.
HIS HONOUR: I understand, but it needs to be determined this evening, doesn't it?
LATIMER: It does, your Honour.
ROWAN: Your Honour could commence the sentences tomorrow.
HIS HONOUR: Fair point, I think that's the answer.
LATIMER: Potentially could.
HIS HONOUR: Mr Flaherty is hardly a risk of flight, unless you say he is. I don't know whether you - have you got a police officer here who might
LATIMER: I do, your Honour.
HIS HONOUR: You do?
LATIMER: Yes.
HIS HONOUR: Do you want to get some instructions? I'm thinking of commencing the sentence tomorrow and you two arguing, or whoever is available arguing the case tomorrow. But if you tell me that there is some risk of Mr Flaherty
LATIMER: If your Honour is minded to commence the sentence tomorrow and defer the actual sentence, then bail would then continue on the same conditions as before.
HIS HONOUR: Yes.
ROWAN: Is there a residential condition? I just note that Mr Flaherty resides in Katoomba. I can't recall that there is a residential condition, but it may not be feasible for him to get back to
HIS HONOUR: Is he down here? Is he staying here - likely to stay here?
ROWAN: Would your Honour perhaps consider the argument at not before 12 and that will give him time to get home, get his medication and
HIS HONOUR: Look, I would, yes.
ROWAN: And frankly time for me to do the same thing and get some
HIS HONOUR: No, that's all right. What about you, Ms Latimer, not before 12?
LATIMER: I think not before 2, your Honour. Mr Paish may wish to appear on this matter and he is currently in a trial. I'm not sure where he is at this stage.
HIS HONOUR: Who is that, Mr Paish?
LATIMER: Mr Paish, that's correct.
HIS HONOUR: You better have backup for Mr Paish because if he's not available I need someone at 2 o'clock to argue two points. One is the applicability of s 62. Ms Rowan says yes, that applies, you say no, it doesn't. Now that is a matter of statutory construction. I would need tendered, for example, the notice of intention to appeal.
ROWAN: I can do that now.
HIS HONOUR: Do you want to tender it now?
ROWAN: I have a copy.
HIS HONOUR: Do it all tomorrow, let's not hold things up now. So I would need that in evidence, I would need any arguments. I would need any decisions about this section. I mean it may well have come up before. The second issue is the merits of it and any law on that. As I said I might be wrong in my recollection, but I seem to remember, and I'll ask my associate to see if she can find a decision I made in a case, where in that case I refused bail. I think I did. It was late 2014, it was a Commonwealth offence. You'll find it, it's probably published. It was a Taiwanese national, a woman. There will be a number of judgments and there will be a sentence. I'm just trying to remember the name of the counsel.
ROWAN: That would help, if I know them I could ring them.
HIS HONOUR: I know, that's what I was thinking. I haven't got my diary with me so I can't look it up. We'll see if we can find it. Finding the case is what you want or finding any other cases about appeal bail. Now you need to be on notice, Ms Rowan, that if I'm against you, your client needs, as I'm sure you've advised him, to be ready to go into custody tomorrow.
ROWAN: Yes.
HIS HONOUR: It may be that he loses on the legal point, it may be that he loses on the merits point, so he needs to know that, as I'm sure you and Mr Benetatos have told him. Ms Latimer, I'll hear you or counsel or another representative from your office. I've got a pretty full day tomorrow, including a judgment that I think I'm delivering tomorrow at some stage so it might be a long day.
ROWAN: What I can do, your Honour, is I will be obviously looking on the internet. If I find material relevant to the application on either or both points, I can certainly email those through to your Honour's associate.
HIS HONOUR: Thank you. My associate will give each of you her email. She will write it out and give you a card - not a card, she will write it on a piece of paper. She will write the chambers' telephone number so that you are able to send any material in advance, which would be appreciated, but if not that's fine. I will list it for 2 o'clock and bail is continued. There aren't any reporting conditions are there or there are?
ROWAN: No, they were deleted, your Honour.
HIS HONOUR: He doesn't have any conditions that would affect him for the next 24 hours, does he?
LATIMER: Not that I'm aware of, your Honour.
HIS HONOUR: But he's going to go home tonight so I don't have to vary that.
ROWAN: He's going to go home.
HIS HONOUR: Okay, all right, 2 o'clock tomorrow.
ADJOURNED TO FRIDAY 26 FEBRUARY 2016 AT 2PM
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Decision last updated: 08 July 2016