Regina v PRITCHARD

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0010 LOWER COURT JUDICIAL OFFICER : Taylor DCJ

COUNSEL : R. A. Hulme - Crown P Byrne SC - Appellant SOLICITORS : C. K. Smith - Crown Jeffreys & Associates - Appellant CATCHWORDS : CRIMINAL LAW: Sentencing; buggery; s 79 Crimes Act 1900; assault with intent to commit buggery; s 80 Crimes Act 1900; indecent assault; s 61E(1), ss 61L and 81 Crimes Act 1900; effect on sentence of repeal of offences to which guilty plea made; ss 55(2) and 30 Interpretation Act 1987; other offences taken into account on buggery charge; s 22(1) Criminal Procedure Act 1986; Loss of Vocation; parity of sentence with non co-offender Crimes Act 1900 (NSW) ACTS CITED : Criminal Procedure Act 1986 (NSW) Interpretation Act 1987 (NSW) DECISION : Leave to appeal granted; Appeal dismissed

JUDGMENT 1 GROVE J : I have had the advantage of reading the judgment of Abadee J in draft form and gratefully adopt it as a reference to the issues in the appeal. I wish only to express myself upon a few matters in the light of the repeal or amendment of ss 61E and 79-81 of the Crimes Act 1900. Unless otherwise stated, references to sections are to that statute. 2 The appellant pleaded guilty to four counts in an indictment and requested that four further offences listed on a schedule pursuant to s 21(1)(c) of the Criminal Procedure Act be taken into account. All offences involved criminal sexual misbehaviour with or towards a different victim and hence there were a total of eight of these. The time spans of offences spread between the earliest date specified of 1 August 1973 and the latest of 31 January 1992. 3 It is convenient to tabulate the nature of the conduct charged and the statutory source for it: Count 1: an act of buggery with mankind contrary to s 79: prescribed maximum penalty 14 years penal servitude; Count 2: assault with intent to commit buggery upon mankind contrary to s 80: prescribed maximum penalty 5 years penal servitude; Counts 3 and 4: assaults accompanied by an act of indecency contrary to s 61E(1): prescribed maximum penalty 4 years imprisonment; First scheduled offence: indecent assault upon a male contrary to s 81: prescribed maximum penalty 5 years penal servitude; Second and third scheduled offences: assaults accompanied by acts of indecency contrary to s 61E(1): the provision applicable to counts 3 and 4; Fourth scheduled offence: assault accompanied by an act of indecency contrary to s 61L: prescribed maximum penalty 5 years imprisonment. 4 No particular comment is required concerning the repeal of s 61E (Act No 198 of 1989). The proscribed conduct remained punishable pursuant to s 61L although a legislative indication that a more serious view should be taken is derivable from the increase in maximum penalty. 5 Section 81 - referrable to the first scheduled offence - was repealed with effect from 8 June 1984 (Act No 7 of 1984). I confess to some difficulty with the terminology in which that provision was expressed. It used to provide: "81. Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years." 6 Whilst it is clear that apparent consent obtained by fraud or from someone incapable of validly giving it is no consent at all, the concept of assault with consent is at least ambiguous. Assault is not defined in the Crimes Act but it has been observed that s 245 of the Queensland Criminal Code represents an attempt to reproduce the common law. See Howard, Australian Criminal Law, 5th Edn @ p 138: "A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault. The term 'applies force' includes the case of applying heat, light, electrical force, gas odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort."

See also R v Bonora 1994 35 NSWLR 74 @ 78B-C. 7 In relation to the charge contrary to s 81 facts were put before the learned sentencing judge without objection and he found that the appellant invited the victim into his room to talk and that whilst there the appellant tried to kiss him and put his hand on his genitals and began to fondle the outside of his clothing. It was not suggested that this occurred with the consent of the victim. In that circumstance it is unnecessary to explore further the phrase "with or without consent" in the context of construction of the now repealed s 81. 8 I turn to the charge of buggery contained in the first count of the indictment. 9 At common law it was an indictable offence for a person to commit buggery with an animal or another person. It consisted of sexual intercourse per anum by a man with a man or a woman; or per anum or per vaginam by a man or a woman with an animal: see Halsbury, 4th Edn Vol 11(1) para 505 and the cases collected and referenced there. 10 Section 79 provided that "whosoever commits the abominable crime of buggery, or bestiality with mankind, or with any animal shall be liable to penal servitude ….." 11 By Act No 10 of 1924 a prescribed maximum penalty of penal servitude for life and minimum of 5 years was replaced by a prescribed maximum penalty of 14 years penal servitude. 12 Section 79 was amended and a partial repeal effected by Act No 7 of 1984. Its terms were replaced with a provision that "any person who commits an act of bestiality with any animal shall be liable to penal servitude for 14 years". 13 Importantly by the same Act it was legislated: " Certain charges not to be brought at common law. 580. A person may not be charged with any common law offence in respect of any act committed upon or in relation to another person, being an act which could, but for the amendment of sections 79 and 80 and the repeal of sections 81, 81A and 81B by the Crimes (Amendment) Act, 1984, have been the subject of a charge for an offence under any of those sections." 14 Senior counsel for the appellant has argued that the essential repeal of that part of s 79 as specified offences of buggery with mankind should have the effect of extinguishing any culpability for such conduct which now lies outside the range of criminal sanction. 15 He acknowledged that this argument could not be sustained in circumstances where as part of a legislative re-ordering offences have been abolished but the misconduct made the subject of sanction by replacement provision. He contended that this was a case where the abolition was absolute and s 580 was emphatic of that circumstance. 16 Consideration of this argument involved analysis of the implicit contention that the offence has been in every sense "abolished". Buggery was an offence in respect of which consent was no defence and a person (of age) who consented was punishable as an accomplice. The offence itself was complete whether or not the person upon whom the act was committed gave consent. Whilst it is accurate to observe that there has been "abolition" of the offence in the case of consenting adults there has been continuance of liability to punishment for some misconduct formerly comprehended within the scope of s 79, specifically non consensual acts. 17 Penetration of the anus is conduct defined as sexual intercourse pursuant to s 61H and sexual intercourse without consent is punishable pursuant to s 61I. The assumption at the core of the appellant's submission is that the count against him asserted no more than consensual anal intercourse between adult males in private. This was not correct. Without objection an edited statement of the victim was placed in evidence. Included in it was a description of how he went to the appellant's room and revealed to him, his superior, how he was depressed about a certain matter and he "needed a shoulder to cry on". He described himself as emotionally distressed and low in self esteem. The appellant began to hug him and remove his clothes. The statement went on to record: "He then sat up on the side of the bed, removing the sheets, I could see he was naked and he had an erection. He motioned me to stand in front of him, which I did. He pulled my underwear down. I said, 'What are you doing.' He said, 'Don't worry, it won't hurt, you will enjoy it'. He then stood up behind me and began to insert his penis into my anus. It hurt, I felt moderate pain. He then sat down on the side of the bed, dragging me with him. He penetrated me and I felt extreme pain. He thrust himself forward several times in the sitting position. He then ejaculated in my anus. ………………………………… I did not give (the appellant) permission to assault me or have anal intercourse with me. I only succumbed to it by the state of my mind at the time. He caught me at a weak moment, my defences were down. I felt I did not have the capacity to resist." 18 In the legislative structure continuing in existence after the repeal of s 79, the absence of consent mentioned in s 61I is affected by the provisions in s 61R. Although an accused must know that a complainant is not consenting it is sufficient if he is reckless as to that consent and he is reckless if he does not care whether the complainant consents or not: R v Murray 1987 30 A Crim R 315. It is sufficient if an accused is aware that the complainant might not be consenting or possibly was not consenting: R v Zorad 1979 2 NSWLR 764; R v Hemsley 1988 36 A Crim R 334. 19 Understandably and properly the learned sentencing judge did not address the issues before him in terms of the current statute. The crime of buggery to which the appellant pleaded guilty could comprehend both consensual and non-consensual sodomy and it was relevant to consider aggravating factors which could, and in this case did, include the absence of consent and the abuse of the position of power or trust, that is to say by an ordained priest in a religious order over a novice. His Honour's findings relative to this count were substantially in terms of a paraphrase of the extract of evidence above set out. 20 I have indicated that the argument advanced by the appellant was premised upon his claiming to have been punished for conduct for which criminal sanction had been abolished. The premise is flawed in that this was not simply a case of consensual sodomy by adult males in private unembellished by any other circumstance of culpability. Inter alia, Abadee J has analysed the operation of the Interpretation Act and I agree with his conclusions applicable to this case, however I perceive force in the argument that, if in a given case the circumstances demonstrated a consensual act unaccompanied by any matter of aggravation, abolition of the criminal sanction might be categorized as extreme reduction of penalty and even if s 55 be not directly applicable, parity of reasoning from cases like R v Hartikainen CCA unreported 8 June 1993 could result in nominal imposition becoming appropriate. 21 For the reasons given, that is not this case. 22 It was necessary to include in sentence upon the first count condign punishment for the offences in the schedule as well as punishment in respect of the other three counts. The totality of criminality exhibited in multiple non-consensual acts against separate victims has led to an effective imposition which, viewed in terms of that totality is well within the range of the sound exercise of discretion. 23 I agree with the orders proposed by Abadee J.

GROVE J ABADEE J BARR J

24 ABADEE J: The applicant pleaded guilty to an indictment containing four counts each alleging sexual offences against different complainants. 25 The first count included a count of buggery under the provisions of s 79 of the Crimes Act which provided for a maximum penalty of fourteen years. The date of the offence alleged was between 1 September 1982 and 30 November 1982. 26 The second count was a charge of assault with intent to commit buggery pursuant to s 80 of the Crimes Act which provided a maximum penalty of five years penal servitude. The offence was alleged to have been committed on or about 9 May 1981. 27 The third and fourth counts each alleged an indecent assault under the provisions of s 61E(i) of the Crimes Act. At the time of the commission of the s 61E offences, the terms of the statute provided for a maximum penalty of four years imprisonment for an offence of that kind. The offence the subject of the third count was alleged to have taken place between 1 December 1983 and 31 December 1983 and in respect of the fourth count between 22 June 1984 and 30 June 1984. 28 In respect of the first count the applicant was sentenced to four years penal servitude to commence on 10 September 1997 and an additional term of two years. In respect of that sentence his Honour Judge Taylor, the sentencing judge took into account four offences of indecent assault. The eight offences involved eight individual victims and were committed over almost a ten year period. 29 In respect of the second count a fixed term of penal servitude for three years to commence on 10 September 1997 was imposed. On counts three and four a fixed term of imprisonment for two years to commence on 10 September 1997 was imposed. 30 The applicant was thus effectively sentenced to a total sentence of six years penal servitude comprising a minimum term of four years with an additional term of two years. That sentence was imposed on the first count on the indictment, the most serious of the charges. 31 The applicant contends that the sentence thus imposed upon the applicant is excessive having regard to all the relevant circumstances. Three grounds of challenge to the correctness of the sentence are made. These are as follows: (i) The impact upon sentencing of the repeal of the offence of buggery pursuant to s 79 of the Crimes Act; (ii) The significance of the loss of vocation as a priest in consequence of conviction and sentence; (iii) A question of parity with the sentences imposed upon a person who was effectively a co-offender. 32 Before returning to these grounds it is appropriate if I briefly refer to the facts which were extensively summarised by the sentencing judge in his careful reasons for sentence. 33 The eight offences as I have said involved eight individual victims. The applicant was a former priest conducting his ministry with the Society of St Gerard Majella which operated within the Parramatta Parish. The applicant was for a time the school principal of the Newman High School which was run by the Society. In the main the victims were resident postulants or novitiates undergoing training before taking their vows. 34 In his reasons for sentencing his Honour said (SR 2-3): "Each of the offences involves a serious breach of trust. The prisoner abused his position of authority. The victims were young men who were striving to prove their suitability for religious life. They accepted modification of their behaviour through guidance from their superiors. Each case shows the deep trust that these individuals had in the prisoner as a priest; their vulnerability to his manipulation and their powerlessness when faced with the prisoner's sexual advances. Each of the victims held a strong belief in their faith and a loyalty to their church. The prisoner held great authority over the young men and he exploited them for his own sexual gratification. The impact on the victims in these circumstances is immense. It generates a requirement for inclusion of an element of general deterrence to protect potential victims who might be in a similar plight." 35 The evidence and summing-up reveal that in respect of the four counts the victims were men aged between the ages of fourteen and nineteen years. In sentencing his Honour had regard to the various subjective matters. It is not suggested any were overlooked. His Honour also had regard to the principle of totality (SR 13).

The first ground - Abolition of the s 79 Offence - Impact Upon Sentencing: 36 The offence to which the applicant pleaded guilty was alleged to have occurred between 1 September 1982 and 30 November 1982. The facts tendered to establish the elements of the offence were to the effect that the applicant had engaged in an act of anal intercourse with a male aged 19 years. Two matters were argued in respect of this ground.

(a) Relevance of Consent 37 The first contention on behalf of the applicant was that consent to the act was not relevant to an offence of the kind involved and that the issue of consent did not seem to be given any prominence either in the facts of the case or in the remarks on sentence given by the sentencing judge. It was argued that to have considered the absence of consent, even if it had been established, may have breached the rule in The Queen v De Simoni (1981) 147 CLR 383. The sentence it was submitted, must not take into account any matter of aggravation which could amount to a more serious offence. 38 It is correct to say that absence of consent is not an element of the offence of buggery. As a result it was not essential that the "issue of consent" have prominence in the proceedings. Nevertheless, as the Crown correctly argued, that is not to say that conduct by an offender in perpetrating an act of buggery with the victim is not relevant. The Crown submitted that it had some prominence in the evidence before his Honour and in his remarks on sentence: see the passage earlier quoted from His Honour's sentencing remarks at p 3 supra. It would seem to me one can contemplate various factual situations ranging from an act between two ready and willing males reflecting perhaps criminal culpability at a lower level to that where the behaviour or even the exercise of authority on the part of one adult might be seen to have secured the participation of the other, where that other would not otherwise have participated, and thus reflecting a higher level of culpability. One can contemplate many different factual situations. Indeed, in his submissions the applicant accepted that his conduct represented a gross breach of trust. Consideration of an absence of consent, even if established, would not involve a breach of De Simoni principle.

The repeal of the offence under s 79: 39 I turn to the appellant's next contention concerning the repeal of the offence of buggery in s 79. The appellant submitted that that part of s 79 which created the offence known as buggery was repealed by legislation which commenced on 8 June 1984, carrying with it certain consequences for sentencing purposes. 40 Having regard to submissions advanced by the appellant in support of this ground which I will turn to in a moment, it is appropriate to again refer to what happened in respect of this offence, the subject of the first count. In respect of the first charge of the crime of buggery, the appellant requested that pursuant to s 21(1) of the Criminal Procedure Act 1986 (NSW), the Court take into account four further offences. They were listed on a Form 1 signed by the appellant. The form provided that if the appellant was found guilty of the offence of buggery, the appellant could ask for the offences listed in the Form 1 to be "taken into account by the Court in dealing with you for the offence of Buggery". His Honour certified the form to the effect that in sentencing the appellant for the offence of buggery of which he had "been found guilty, the Court had taken into account the "admitted" four offences on the Form 1. 41 Section 21(1) of the Criminal Procedure Act 1986 provides that if a person is found guilty of an offence and the Court is satisfied that the form has been signed and certain other conditions are met, the Court may pursuant to s 21(2), if it thinks fit, when imposing a penalty on the person for "the offence of which the person has been found guilty" take into account all or any of the offences in respect of which the person has admitted guilt. 42 In Morgan (1993) 70 A Crim R 368 Hunt CJ at CL at 371 observed that the only limitation upon the penalty to be imposed when dealing with matters to be taken into account pursuant to s 21 of the Criminal Procedure Act 1986 was, "as s 21(3) says, that the penalty must not exceed the maximum penalty which the Court would have been empowered to impose if no other offence had been taken into account". The sentence of six years imposed by his Honour on the first count specifically took into account the offences listed on the Form 1. In a supplementary submission Mr Byrne SC submitted, that by reason provisions of s 21(3) that the maximum penalty referred to in s 21(3) was in the instant case either no penalty or no meaningful penalty at all and that the sentence able to be imposed if the matters on the sentence were taken into account was therefore no penalty or no meaningful penalty at all. In my view this submission should be immediately rejected because of the statutory provisions of s 21 and s 21(2). Indeed, the consequences of its acceptance would be somewhat remarkable. 43 Next, in his written submission Mr Byrne submitted that the question arose as to whether, because of the repeal of the offence to which the applicant pleaded guilty, any sentence at all should have been imposed. It was submitted that the determination of that question depended upon the application of s 55(2) of the Interpretation Act 1987 to the present circumstances. That section provides: "If an Act or statutory rule reduces the penalty for an offence, the penalty as reduced extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement". 44 It was said that s 55(2) reflected a principle contained in Article 15 of the International Covenant on Civil and Political Rights. Mr Byrne correctly accepted that Article 15 forms no part of the domestic or municipal law of Australia: Dietrich (1992) 177 CLR 292 referred to by Hunt CJ at CL in Kalajzich (1997) 94 A Crim R 41 at 48; Minister for Immigration v Teoh (1995) 183 CLR 273; Civil Aviation Authority v ABC (1995) 39 NSWLR 540 at 558. 45 It was however submitted that s 30 of the Interpretation Act had no relevant application, nor was this provision to be considered in this case. Section 30 provides, relevantly: (1) The amendment or repeal of an Act or statutory rule does not: (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted continued or enforced, as if the Act or statutory rule had not been amended or repealed". 46 It is appropriate to mention in passing that s 30 is also reflected in Article 15 of the International Covenant on Civil and Political Rights. 47 Mr Byrne put a number of other arguments in his written submissions. He argued that the principle in s 55 should be generally applied so that, where an offence has been abolished altogether, no penalty should be imposed and this should be particularly the case where the abolition of the offence in question is not accompanied by some associated legislative enactment which covers the question. No authority was cited in support of this submission. The same question of principle founded upon s 55 he submitted, was also relevant to the sentence imposed upon the second count of the indictment, that is, the offence under s 80 of the Crimes Act as it stood in 1981. The offence of attempting to commit the crime of buggery was also abolished by Act 7 of 1984, commencing on 8 June 1984. 48 In putting his oral submissions to the Court Mr Byrne did not, (no doubt for good and valid reasons) make any application to the Court to withdraw the appellant's plea of guilty to the first count of buggery nor indeed, the appellant's plea to the second count: see Boag (1994) 73 A Crim R 35; Ryan (1995) 90 A Crim R 191. 49 Mr Byrne, in oral argument submitted that in the instant case, the repeal of s 79 still meant that a conviction for it could nevertheless stand but that no sentence could be imposed for it, whilst leaving the appellant to be sentenced for the Form 1 offences. He argued that if there had been no Form 1 offences, that notwithstanding that the charge was a valid one, and notwithstanding his plea of guilty to it which was followed by conviction, no penalty could be imposed. This submission should be rejected on the further ground (and there are more fundamental grounds which I will turn to) because of the provisions of s 21(1) of the Criminal Procedure Act. If no penalty could be imposed for the offence of buggery, the subject of count 1, then no penalty could be imposed for the Form 1 offences. A penalty must be imposed for the buggery offence in effect as a threshold condition for taking into account the Form 1 offences. That said the argument advanced by reference to the provisions of s 21(1) and Form 1 does not apply to the sentence imposed on the second count under s 80. 50 Next, Mr Byrne further submitted that the abolition of an offence itself is the equivalent of, and is capable of amounting to a reduction of the penalty for an offence for the purposes of the meaning of s 55(2). Further, or alternatively, he argued that abolition of a penalty for the offence is also effectively a reduction in sentence for the purposes of that provision. With respect these submissions should be rejected. 51 As a matter of construction I do not construe s 55(2) as suggesting that the abolition of an offence, is or is capable of being regarded or treated as involving the reduction of a penalty for an offence. The subject matters are different. To reduce a penalty for an offence leaves the offence on foot, but reduces the punishment for it. In this case there was in fact no reduction of the penalty for buggery. Further, the offence in terms in which it was expressed, was the subject of repeal within the meaning of s 30 of the Interpretation Act with the consequences referred to in that section. Further, in my view to abolish a penalty is also different to the reduction of a penalty. A reduction leaves a penalty on foot, but again reduces the punishment for it. 52 Thus as a matter of statutory construction Mr Byrne's submissions fail. They fail for additional reasons. If Mr Byrne's argument is true that abolition of an offence is capable of being treated as being a reduction of penalty for the purposes of s 55, dealing as that section does with the specific subject matter of reductions of sentence, then it is inconsistent with the general provisions of s 30 of the Interpretation Act. In my view ss 55 and 30 deal with different subject matters with s 55 operating only in respect of the subject matter expressly referred to on its terms, that is, reduction in penalty and with s 30 applying in the case of "repeal". What occurred in this case was a repeal of s 79 of the Act. Such repeal having occurred, the provisions of s 30(1)(c) and particularly s 30(1)(e) continued to apply in respect of penalty. Section 30 addressed the repeal situation, not s 55. 53 That there may be a continuation of liabilities and penalties under a repealed Act is well recognised. Section 30 itself recognises such. Indeed, s 30 of the Interpretation Act in continuing the liability to prosecution for breach of a repealed Act reverses the common law position that a liability to punishment for contravention of a penal statute did not continue after the repeal of the enactment: see R v Scarlett; Ex parte McMillan (1972) 20 FLR 349 per Fox J at 351-352 (a case concerning s 38(d) of the Interpretation Ordinance 1967 (ACT)); Byrne v Garrison (1965) VR 523. In Byrne's case a company director was held to remain liable for a breach of a section of the Companies Act (Vic) notwithstanding the repeal of the section. It also considered the provisions of s 7 of the Acts Interpretation Act 1958 (Vic). True it was a case specifically concerning liability for breach, rather than in terms a liability for punishment for breach of a repealed section but I do not consider, having regard to the provisions of s 30 of the New South Wales Act, that this is a point of material difference. In Samuels v Songaila (1977) 16 SASR 397 liability to a specified penalty was held to be preserved notwithstanding its repeal and substitution by a different penalty. Generally speaking it would seem that, absent an express statutory provision, see for example s 75 of the Defence Force Discipline Act 1982 (permitting a conviction without punishment), ordinarily preservation of an offence preserves the punishment for it. 54 Mr Byrne, alternatively argued that even if his submission as to the application of s 55(2) was not accepted, that nevertheless, no penalty should have been imposed for the first count. This argument was advanced by reference to the decision of Regina v Hartikainen (CCA 8 June 1993, unreported). The submission was that if Parliament increased a penalty for an offence, and the courts are required to give effect to the concerns manifested by Parliament, then by some parity of reasoning if Parliament repeals an offence, then likewise the courts should give effect to such and not impose a penalty for the repealed offence. This submission should be rejected for the reasons already given. There is a distinction between "offence" on the one hand and penalty on the other. Indeed, as I have already indicated it is difficult to conceive how, putting aside an express statutory provision there could be a conviction for an offence without a penalty at all. Even Mr Byrne's suggestion of a nominal sentence for such an offence or a rising of the court sentence still involves a sentence, which is in a technical sense, a form of imprisonment even though the restraint on liberty may operate in fact, only for but a short moment in time. The argument should also be rejected because s 55 deals with the matter on the effect of reduction. Finally the submission by reference to the Hartikainen type argument fails because the law is that the sentence to be imposed is that applicable at the time of the commission of the offence. The applicant suffers no detriment by a subsequent increase in sentence after the commission of the offence. The argument advanced by the applicant, if successful, might suggest a benefit in crime concealment, where an accused might hope for a change in social thinking would be. Victims could suffer a detriment from the success of the argument. 55 To sum up the situation it would seem to me that the provisions of s 30 of the Act apply to the instant case, and not the provisions of s 55: see Beserick (1993) 66 A Crim R 419. In that case as Hunt CJ at CL noted that s 81 (an offence involving indecent assault upon a male) was in force at the time of the offence but that the section had been repealed (at the same time as the repeal of the offence of buggery) in 1984. His Honour said (at 442): "That section was repealed in 1984, but a charge pursuant to it is still permitted by s 30 of the Interpretation Act 1987 (NSW)". 56 His Honour did not suggest that there could still be a charge, a conviction for the charge, but that no sentence could or should be imposed by reason of s 55 or for any other reason. Such a result would be surprising. It would offer little comfort to the victim, nor any corresponding benefit to the public to have such a serious conviction found, indeed, even the subject of a plea, but without punishment for it. In my view if there is no impediment to the continued prosecution of buggery offences committed prior to 1984, it follows that then there is no restriction on the court's power to impose punishment on conviction, for such an offence. 57 In my view the submissions advanced by Mr Byrne in respect of the first and second counts of the indictment should be rejected.

Loss of Vocation: 58 In his remarks on sentence his Honour had regard to the submission advanced on behalf of the applicant (and repeated before us) that as a result of these matters he has suffered a form of punishment in that the deprivation of the ability to practice his chosen profession of priest and teacher is a serious punishment in its own right. His Honour took these matters into account, but considered they should be given little weight as they are but a natural consequence of the chosen criminal conduct of the prisoner. His Honour (SR 2) referred to a serious breach of trust involved and the position of great authority that the applicant held over them in a particular religious environment. The loss of vocation is to be seen in context and in the particular context of breach of trust to young men. The offences were committed in the course of his work as a teacher and priest which he used to achieve his purposes. The applicant, as I have earlier said does accept that his conduct represents a gross breach of trust placed in him by those who were the direct victims of his offence. 59 I see no error in his Honour's approach. In this case as it was the applicant's vocation as a priest and a teacher ("in great authority") over the young men that gave him the opportunity to take advantage of the young men to perpetrate sexual offences upon multiple victims. The loss of the applicant's vocation can in this situation hardly be given more than little weight in the circumstances of this case for reasons also given by Gleeson CJ in R v Vincent Gerard Ryan (CCA 2 March 1998, unreported). That case concerned a multitude of sexual offences against a multitude of victims whilst the offender was a priest Gleeson CJ said as follows (at 6): "In a circumstance where the essence of the criminality of the conduct of an offender is abuse of a position of trust, it is ordinarily not of great assistance to the offender to observe that he occupied a position of trust. The offences committed by the present appellant were only made possible by the trust that was reposed in him in connection with the pursuit of his priestly vocation". 60 Mr Byrne's second ground argument should be rejected.

Parity with Co-offender: 61 It is submitted that the circumstances of the applicant's conduct in the case of Regina v John Sweeney (CCA, 14 July 1998, unreported) are broadly similar to those alleged against the applicant. It is submitted that the principles in Lowe v The Queen (1984) 154 CLR 606; applied in Postiglione v The Queen (1997) 189 CLR 295 apply. The principle of parity is an aspect of equal justice. That said nevertheless in the case of co-offenders different sentences may reflect different degrees of culpability for their different circumstances. The principle of parity is that, as and between co-offenders, there should not to be a marked disparity which gives rise to a "justifiable sense of grievance" Postiglione at 301-302. However, in this case whilst Sweeney was a member of the same religious order and offended in a number of similar ways the applicant also pleaded guilty to the offence of buggery carrying a penalty higher than the offences of which Sweeney was convicted and in respect of which he pleaded not guilty. However, the significant point of difference is that Sweeney was not a co-offender for the purposes of the parity principle. In R v Ellis (1993) 68 A Crim R 449 Hunt CJ at CL considered that the parity principle in Lowe supra applied to sentences imposed on co-offenders, but was not an appropriate principle to apply in relation to different offenders with similar characteristics who have committed similar crimes. 62 Even if the parity principle could be invoked the applicant's argument should be rejected. Sweeney committed three indecent assaults upon one victim in the period 1980-1983 whereas in this case there was a high level of culpability involving the committal of six indecent assaults, one buggery and one attempted buggery upon eight different victims over almost a ten year period. Indeed, there is substance in the Crown's submissions that the only useful comparison which can be made with the sentences imposed on Sweeney (totalling 27 months) is that notwithstanding the difference in plea, the applicant's conduct and culpability was rather considerably greater requiring considerably greater punishment. 63 However, even if I be wrong in this conclusion that the parity principle (or some similar application of such does not apply), nevertheless, it seems to be that the ground advanced ought not to succeed. On sentence his Honour expressly stated that he had had regard to the sentence imposed on Sweeney, whilst noting the differences between his case and the applicant's case (SR 12-13). Further, as the reasons show there were different levels of culpability and different circumstances to be seen when comparing the two cases. 64 The Crown in its submissions has referred to a number of cases disclosing penalties imposed for the repealed offences under ss 79-81. Those cases reveal that a wide range of sentences have been imposed reflecting, no doubt, the wide range of circumstances. In Ellis Hunt CJ at CL said (at 461): "What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range. There is nothing in Lowe to suggest otherwise". See also Morgan supra per Hunt CJ at CL at 371. 65 Sweeney's sentence it seems to me is more properly to be viewed, as a sentence forming part of the range to be considered as suggested by Ellis rather than by reference to the principle of parity as and between co-offenders. So viewed the sentence on the first count is within the range of sentence open to be imposed for the offences, the subject of the plea. In the event, the applicant did have the benefit of having Sweeney's sentence considered and taken into account, albeit that Sweeney was not effectively or otherwise strictly a co-offender. 66 The parity argument should be rejected. 67 However, having regard to the issues raised in the instant case, I would grant leave to appeal the sentences, but propose that the appeal be dismissed.

GROVE J ABADEE J BARR J

68 BARR J: I agree with the orders proposed by Abadee J and with his Honour's reasons.

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.