O’Sullivan v R

HOEBEN CJ at CL:

The applicant pleaded guilty and was sentenced in relation to 14 counts of indecently assaulting a male person, contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) which had a maximum penalty of imprisonment for 5 years.

Over a period of 11 years (1972 to 1983) the applicant committed acts of indecent assault against 15 male students while he was a teacher at Marist Brothers at Hamilton (counts 1-12) and Deputy Principal or Principal at St Marys High School in Casino (counts 13 and 14, Form 1 matter).

The sentencing judge imposed an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years. The particulars of the offences, each relating to a separate complainant and indicative sentences with respect to each count, are summarised as follows:

The indicative sentences incorporated a 10 percent discount for the applicant’s plea of guilty which was entered on Thursday, 8 February 2018, three days after the trial was listed to commence. Special circumstances were found such that the applicant’s non-parole period reflected 70.5 percent of the total sentence. The sentence commenced on 1 March 2018 and will expire on 31 August 2026. The non-parole period will expire on 29 February 2024.

At the time of sentence, the applicant was serving an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years for similar offences committed against different complainants. This sentence commenced on 24 August 2016 and will expire on 25 August 2022.

Originally the applicant relied upon six grounds of appeal as follows:

Grounds 2 – 6 were withdrawn on 22 October 2019. Thereafter, the applicant relied upon a single ground of appeal:

Her Honour proceeded to assess the objective seriousness of the offending and noted that the offending took place over 11 years and involved 15 complainants whose age ranged between 10 to 14 years.

Her Honour assessed counts 1, 4, 5, 7, 9, 10, 11, 12 and 14 as being at the low, or towards the lower end of the range. The indicative sentences after a 10 per cent discount were in the range of 6–12 months. Counts 3, 6, 8 and 13 were assessed as being within the midrange and count 2 was assessed as being towards the higher end of the range, taking into account the matter on the Form 1. The indicative sentence for count 2 was 36 months.

Her Honour noted that most of the complainants stated that the offending was not isolated. Conduct similar to that encompassed by the charges was set out in the Agreed Facts as context evidence. Her Honour accepted that those uncharged acts could not be taken into account as an aggravating factor. Her Honour did take that conduct into account as relevant to the denial of any leniency that might be afforded if the conduct had been a one-off or isolated event.

Her Honour regarded general deterrence as very important for offending of this kind. Her Honour took into account the age of the complainants at the time of the offending. Her Honour noted that the applicant was in a position of trust and authority in respect of the complainants. Her Honour concluded that a custodial sentence was essential if the courts were to play their proper role in protecting young children from sexual attacks by adults. Her Honour considered that each of the offences was objectively serious because it involved a breach of trust by a person in authority.

In relation to the offending generally, her Honour observed that with the exception of count 2 where the applicant masturbated MM to ejaculation, the acts constituting the offences did not involve penetration or ejaculation. There was no fellatio, physical force or threats and that generally the offences were opportunistic, although no doubt highly embarrassing and humiliating for the victims. Her Honour found that the offending involved a blatant breach of trust given that their parents had entrusted the care of the victims to him. Her Honour found the offending to be serious because of the gross breach of trust involved, notwithstanding the fact that the acts which constituted the offending fell well short of the worst examples of this kind of conduct.

Her Honour noted that the maximum penalty for each offence was imprisonment for 5 years. She noted that while offending of this kind did not produce physical harm, it had been consistently demonstrated to produce significant and long term psychological consequences. Her Honour referred to the increased understanding of the psychological effects of such offending on victims brought about by the Royal Commission into Institutional Responses to Child Sexual Abuse. Her Honour noted that offending of this kind could have catastrophic consequences for both boys and girls causing them to lead a life which was seriously compromised by their experience.

In relation to the applicant’s subjective case, her Honour noted that he was aged 80 and was the eldest of four children. He had trained as a teacher and obtained a Bachelor of Education. In 1962, he had entered the Marist Brothers Institute and undertook religious training until 1965. He was sent to a number of schools in Queensland and New South Wales. He effectively retired in 2010.

The applicant was diagnosed with type 2 diabetes in 2010 and with chronic kidney disease, stage 3. There was material before the court to the effect that the applicant had been suffering from anxiety and depression while the court matters were outstanding. He had been receiving counselling for a long period of time to address anxiety, memory and concentration problems and low energy. Until he was sentenced in 2016, he had attended over 30 sessions with a psychologist.

Her Honour had regard to a report of a psychiatrist, Dr Nielssen, dated 7 June 2016 which was tendered in the earlier sentence proceedings. The applicant told Dr Nielssen that he had only a fractional memory of the offending and that his behaviour towards the children under his care was an outlet of physical affection rather than motivated by any kind of sexual gratification. Her Honour noted that the applicant maintained that position when he gave evidence in the present sentence proceedings.

Her Honour noted that there was no material before her to the effect that the offending occurred against a background of any underlying psychological condition, nor was there any material that shed light on the motivation for his offending. Her Honour noted that the applicant had not been diagnosed with any psychiatric disorder except anxiety over recent years, which was understandable given the impending criminal proceedings.

The applicant was again interviewed by Dr Nielssen and a report dated 20 September 2018 was before her Honour. The applicant told Dr Nielssen that he could not remember the names of the victims and that he was not able to confirm the dates of each of the offences. He did, however, accept that the charges reflected a pattern of behaviour in those years and he acknowledged that he had committed the offences. He told Dr Nielssen that in 1996 there was a complaint made about him which led to him thereafter not being given teaching duties.

The applicant told Dr Nielssen that in his early life he was attracted to females and he again asserted that his behaviour towards the children under his care was an outlet for physical affection rather than motivated by any kind of sexual gratification. He maintained that he did not become sexually excited or gain sexual gratification from the offending behaviour. He described his interest in the children as “more a kind of paternal interest”.

Her Honour concluded that the applicant showed a total lack of understanding of the magnitude of his predatory offending. Her Honour rejected the applicant’s assertions and found that his interest in young boys was for his own sexual gratification. Her Honour found that:

Her Honour also found that the applicant had no contrition or remorse.

The applicant told Dr Nielssen that he had coped better than he would have thought in prison and had been able to help a number of other inmates who were unable to write letters or complete forms. He was able to maintain his physical health while in prison but still had health issues which included depression for which he was taking medication. He was taking medication for a pituitary tumour which was diagnosed in 1991 and which required operations in 1991, 1995 and 1996. His diabetes is managed with diet and exercise. Her Honour accepted that there was a relatively low risk of the applicant re-offending upon his release. Her Honour based that finding on his age and the fact that he would not be in a position of trust and authority again and that he would be placed on a child protection register. Otherwise her Honour found that the applicant demonstrated zero insight into his offending and had not taken any steps to rehabilitate himself while he was in prison.

Her Honour had before her a number of testimonials as to his good character. However, because the applicant’s behaviour was facilitated by his position and good character, her Honour had regard to the provisions of s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Even though that provision did not apply to historical sexual offence cases, her Honour was satisfied that the applicant’s good character was of assistance to him in the commission of the offences. As a result, she gave the applicant’s previous good character little weight.

Her Honour took into account the hardship of the applicant in custody given his age. Her Honour took into account the principles set out in the case law in determining whether a sentence will be a crushing one. In that regard, her Honour accepted that the applicant would find a fulltime custodial sentence onerous as a result of his age.

In relation to delay, her Honour noted that the offending had occurred over a lengthy period of time and that the last of the offences had occurred approximately 35 years ago. Her Honour noted that the fact of delay between the time of offending and the disposition of the matter should only operate as a mitigating factor where the delay would cause unfairness to the applicant. Her Honour further noted that this Court had determined that the mere passage of time between the committing of a sexual offence upon children and the disclosure of the offence, is of little weight as a factor in mitigation of penalty. This was because all too frequently sexual offences committed against a child were not revealed until the victim was an adult and when the effect of the abuse upon them finally overcame them in later life.

Her Honour noted that in this case a number of the complainants came forward after the applicant’s abuse was reported in the media. Her Honour accepted that the complainants were humiliated and degraded by the applicant and they would have found it difficult to disclose the nature of the acts performed upon them. There was also the humiliation of being sexually assaulted in front of their entire class. Since the applicant was a teacher and/or school principal, he would have been perceived by the victims as occupying a powerful and respected position.

Her Honour noted that the solicitor for the applicant had not submitted that his sentence should be mitigated because of the delay between the offending and the sentence proceedings. Her Honour noted that there was no material before her to the effect that the applicant’s life had been adversely affected by the delay. Her Honour’s findings on delay were as follows:

Her Honour next considered the victim impact statements. Her Honour noted that one of the purposes of a sentence was to recognise the harm done to the victim of crime in the community. Her Honour further noted that the long term psychological effects on victims of sexual abuse were well known and were now in the public and judicial consciousness.

Her Honour noted that Adamson J in R v MJB [2014] NSWCCA 195 had acknowledged that the damage done to children who are victims of sexual assault by adults was well known and could be assumed. In referring to that statement of principle, her Honour was also conscious of what Simpson JA said in R v Tuala [2015] NSWCCA 8 at [81] in that caution must be exercised before a victim impact statement can be used to establish an aggravating factor to the requisite standard.

Seven victim impact statement were read to the court. Each was very moving and set out in detail the way in which the lives of the authors had been seriously damaged by the applicant’s conduct. A number of the victims had self-medicated with alcohol and drugs and all had experienced significant psychological problems.

Her Honour acknowledged that in sentencing the applicant, she was required to impose a sentence which properly reflected the objective seriousness of the offences and to fix a sentence that would ensure that the time the applicant must spend in custody reflected all the circumstances of the offence including its objective seriousness, the need for general deterrence, the need for specific deterrence and to meet the fundamental purpose of punishment, namely the protection of society.

Her Honour noted that since the applicant was sentenced by her in 2016, Parliament had enacted an amendment to the Crimes (Sentencing Procedure) Act 1999 by way of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, s 25AA. The legislation commenced on 31 August 2018. The Attorney General in the second reading speech stated:

Her Honour noted that when she sentenced the applicant in September 2016, s 25AA did not apply and as a result her Honour had regard to a pattern of sentencing in respect of indecent assaults committed against children in the 1970s and the 1980s. At that time, the non-parole period was closer to 50 per cent of the head sentence. In those sentence proceedings, her Honour found special circumstances and varied the statutory ratio to reflect the sentencing practice at the time of those previous offences. In contrast, her Honour noted that on this occasion the applicant was to be sentenced in accordance with the current practice at the time of sentence.

Her Honour noted that the principles of sentencing for child sexual offences were authoritatively stated by this Court in R v Van Ryn [2016] NSWCCA 1 where R A Hulme at [179] referred to EG v R [2015] NSWCCA 21 where Hoeben CJ at CL said:

In sentencing the applicant in accordance with s 25AA, her Honour accepted that she was still constrained by the statutory maximum penalty in place at the time of the offending. All of the offences to which the offender pleaded guilty were contrary to s 81 of the Crimes Act (now repealed). At the time of the offending, s 81 encompassed a wide range of more serious conduct which would now constitute sexual intercourse. Section 61M(2) and other offences which were originally encompassed by s 81 now carry a maximum penalty of 10 years with a standard non-parole period of 8 years.

Her Honour further observed that penalties now prescribed for similar offending far better reflected the community’s abhorrence of this type of criminal behaviour. Her Honour also took into account that sexual intercourse, such as fellatio and cunnilingus, were included in s 81 as an indecent assault at the time of the offending. The legislative changes have separated out these offences. This has to be taken into account when assessing the objective seriousness of offences contrary to s 81.

With respect to the offending generally, her Honour said:

Her Honour took into account totality and accumulation and said:

Her Honour carefully considered the existing sentence to determine the extent to which the sentence to be imposed should be cumulative or concurrent. Her Honour took into account the applicant’s ill health and age and the fact that there were no programs available to him in prison. Her Honour also took into account the principles of totality and accumulation, denunciation and general and specific deterrence. Her Honour acknowledged that given the applicant’s age, it might well be that the remaining portion of his life will be spent in custody.

Her Honour found that although advanced age was a relevant consideration in determining whether a sentence would be a crushing one, she was comforted by Dr Nielssen’s report that the applicant’s physical health had been maintained while in prison and that he had coped with prison life much better than he had originally expected. Her Honour found special circumstances due to the applicant’s age and ill health and adjusted the non-parole period accordingly.

The applicant submitted that when one had regard to both sentences imposed on him, the total sentence was just over 10 years with an effective minimum non-parole period of 7 years 6 months. The applicant submitted that such a sentence was unreasonable and unjust. He submitted that having regard to the combination of the following matters, her Honour’s exercise of the sentencing discretion had miscarried and the sentence imposed was too severe (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]).

The principles applicable to appeals claiming manifest excess are well established. To succeed on such a ground, the applicant must show that the sentence was “unreasonable” or “plainly unjust” (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59]). Consideration of whether a sentence is unreasonable or plainly unjust is undertaken against a background where there is no single correct sentence and where sentencing is not just a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features (Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [34]).

Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle and this Court will not interfere in a sentence merely because it might have exercised its discretion differently (Markarian at [28]). As Hayne J observed in AB v The Queen [1999] HCA 46; 198 CLR 111 at [128] “there will be a range of possible sentences that could be imposed without error”.

All of the matters which the applicant relied upon as combining to demonstrate that the sentence imposed on him was unreasonable and unjust were specifically considered by the sentencing judge. This was not a case where her Honour failed to take into account a relevant consideration. Having identified the particular factor, her Honour in the exercise of her discretion took it into account and ultimately formulated the sentence imposed. This was a purely discretionary exercise in relation to issues on which minds might differ. Just because this Court might have reached a different conclusion, does not establish any error in the sentencing process.

Importantly, her Honour appreciated the wide spectrum of offending which was covered by the now repealed s 81 of the Crimes Act. Her Honour appreciated that although s 25AA allowed a sentencing judge to have regard to current sentencing practice, other restraints were operative such as the maximum penalty and the absence of any non-parole period.

Most particularly, her Honour was very conscious of the principles of totality and accumulation. Her Honour well understood that given the age and health of the applicant, care had to be taken not to make the total effective sentence “crushing”. In other words, all of the specific matters identified by the applicant were individually and collectively taken into account by her Honour.

A fair reading of her Honour’s judgment as a whole reveals an approach that gave effect to the instinctive synthesis that was required in the exercise of the sentencing discretion.

Her Honour was conscious of the effect of the sentence imposed in September 2016 and of the need to make the sentence to be imposed partially concurrent with it. The extent of the concurrency was an entirely discretionary matter. Questions of accumulation and concurrence are intuitive and involve the exercise of a discretion about which opinions may differ but in respect of which the assessment could not be said to be wrong (Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [64]). This Court will be slow to interfere with the exercise of such a discretion (Burgess v R [2019] NSWCCA 13 at [39]).

There was no error in the accumulation in the present case. Each of the counts, both in relation to the present offending and the previous offending, related to separate victims. The offending was not restricted to a narrow timeframe. There were numerous uncharged instances which were relevant as context even though they did not attract a separate penalty.

When consideration is given to the total criminality involved, it can be seen that the applicant offended against 27 students over a 12 year period. Error has not been identified in her Honour allowing a substantial degree of accumulation between the two sentences.

Other relevant considerations were as follows:

For the reasons set out above, the applicant has failed to establish manifest excess. Accordingly, the orders which I propose are:

WALTON J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his Honour.

PRICE J: I agree with Hoeben CJ at CL.