Richards v R

1. [1]

   BEECH-JONES CJ at CL: Subject to two matters, I agree with the reasons of Adamson JA.

2. [2]

   First, the applicant sought to rely on the passage from R v Obbens [2022] NSWCCA 109 (“Obbens”) at [20] (extracted in the judgment of Adamson JA at [89]) to support the proposition that an offender, such as this applicant, who faces sentence for an offence related to earlier offending for which they have already received a custodial sentence and now face a return to custody, is necessarily entitled to some discount beyond the application of the totality principle as explained in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 (“Mill”) at 64. As explained by Adamson JA, if the passage from Obbens is meant to establish any such principle, then it is not applicable here as the applicant is not returning to custody.

3. [3]

   Otherwise, I note that in Obbens at [21], Hamill and Dhanji JJ relied on the following passage from R v Todd [1982] 2 NSWLR 517 at 519-520 (“Todd”) for support for the passage noted above:

4. [4]

   Consistent with the facts of Todd, this passage is directed to the circumstance where an offender has been charged with the subject offence but there is a “lengthy postponement” of the sentencing proceedings for some reason, such as the offender being sentenced interstate. It reflects the necessity to consider the effect of undue delay in the criminal justice system on an offender. It is not directed to the circumstance, such as here, where fresh charges are laid against an offender because another victim comes forward. In the case of child sexual assault, such offences are not “stale crime[s]”. Leaving aside Mill, perpetrators of sexual offences against children are not entitled to a discount because their victims do not all come forward at the same time.

5. [5]

   Second, ground 3 of the notice of appeal contends that her Honour erred in structuring the sentence imposed by her Honour such that, even though a finding of special circumstances was made, the ratio of the combined minimum term of all the sentences the applicant has received and will serve to the combined length of his sentences is approximately 80%.

6. [6]

   In Lonsdale v R [2020] NSWCCA 267 at [65], N Adams J and myself summarised the principles applicable to such a complaint as follows:

7. [7]

   As noted by Adamson JA, the sentencing judge addressed totality in detail. Further, the sentencing judge stated:

8. [8]

   Later in the reasons, her Honour stated:

9. [9]

   In the face of these statements, I am not satisfied that the sentencing judge was not cognisant of the cumulative effect of the various sentences on the ratio of the combined non-parole periods to the total effective sentence. To the contrary, I am satisfied that the sentencing judge was cognisant of that matter. I would reject ground 3.

10. [10]

    I agree with the orders proposed by Adamson JA.

11. [11]

    ADAMSON JA: Since writing my reasons, I have had the benefit of reading the additional remarks of the Chief Judge, with whose reasons I agree.

12. [12]

    On 4 February 2022, Woodburne SC DCJ (the sentencing judge) sentenced Desmond Richards (the applicant) to a term of imprisonment of 8 years, commencing on 30 July 2021 and expiring on 29 July 2029, with a non-parole period of 5 years, commencing on 30 July 2021 and expiring on 29 July 2026. The sentencing judge had found special circumstances and adjusted the statutory ratio between the non-parole period and the total term from 75% to 62.5%.

13. [13]

    The applicant seeks leave to appeal against the sentence on the following grounds:

The sentence hearing

1. [14]

   The sentence hearing took place over 4 partial days: 20 October 2021, 29 October 2021, 14 December 2021, 31 January 2022. The sentence was imposed on 4 February 2022. The Crown tendered the notice of committal, the indictment (which charged 10 counts), the agreed facts, the applicant’s criminal and custodial histories, a victim impact statement of CG and the agreed facts relating to an offence committed in 1980 for which the applicant was sentenced in 2006 to 2 years’ imprisonment, with a non-parole period of 1 year, which was wholly suspended. The Crown also tendered the sentencing judgments of Zahra SC DCJ, McLennan DCJ and Armitage ADCJ, each of whom had previously sentenced the applicant.

2. [15]

   The following documents were tendered on behalf of the applicant: two letters of remorse dated 15 October 2018 and 14 October 2021; psychiatric and psychological reports, pre-sentence reports relating to the applicant and his risk of re-offending and custodial records, including records of courses undertaken by the applicant in custody, as well as his custodial health records.

3. [16]

   The applicant gave evidence in which he adopted his letters of remorse and was cross-examined. His evidence in cross-examination included the following:

4. [17]

   Mr Skinner, who appeared for the applicant before the sentencing judge, submitted that the discount for the applicant’s plea of guilty ought be 25%. (However, there is no challenge to her Honour’s finding that a discount of 10% only ought be allowed.)

5. [18]

   Mr Skinner also submitted that:

   1. (1)

      there had been, because of “late complaints”, substantial delay in the prosecution for which the applicant “was not responsible” and which constituted a significant mitigating factor;

   2. (2)

      the applicant was “entitled to some leniency for his otherwise good character”;

   3. (3)

      the sentencing judge ought find special circumstances on the basis of the lack of rehabilitative options in custody; the accumulation of sentences; the applicant’s physical and mental infirmities; and the need for an “appropriate period of parole to assist [the applicant] on re-entry to the community”; and

   4. (4)

      mitigating factors included his pleas of guilty, his age, remorse, low risk of re-offending, effective rehabilitation and lack of need for further general deterrence or for specific deterrence.

6. [19]

   Mr Skinner, in written submissions, identified the following as a mitigating factor (this is relevant to grounds 4 and 5):

7. [20]

   Mr Skinner submitted that there ought be a substantial degree of concurrency due to the “sequential charging [which was] through no fault of the victims” and that there should be a “significant period of parole”. He referred to R v Todd [1982] NSWLR 517 and Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. He submitted that the sentence imposed ought have the applicant released on 15 December 2021 (the earliest date of his release under the sentence imposed by Armitage ADCJ) with a lengthy parole period thereafter.

8. [21]

   The Crown submitted:

   1. (1)

      s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) applied (namely, that “[i]n determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence”);

   2. (2)

      it would be open to the Court to find that the applicant had good prospects of rehabilitation;

   3. (3)

      although age and ill-health might diminish the weight to be given to general and specific deterrence, the sentence was required to reflect the seriousness of the offending; and

   4. (4)

      s 25AA of the Act required the sentencing judge to have “regard to the trauma of sexual abuse on children as understood at the time of sentencing”.

9. [22]

   The Crown did not submit that the Court ought not make a finding of special circumstances. On the question of delay, the Crown relied on authorities which included R v Dennis (Court of Criminal Appeal (NSW), 14 December 1992, unrep) and R v Spiers [2008] NSWCCA 107 at [37]-[38].

The sentencing judgment

1. [23]

   The facts set out below principally derive from the sentencing judge’s reasons, although some of the detail regarding the applicant’s previous offending derives from evidence before the sentencing judge.

2. [24]

   In order to address, at least, grounds 1 and 3, it is necessary to have regard to the terms of imprisonment previously imposed on the applicant. The applicant had, up to the time of the imposition of the most recent sentence, been in custody since 7 November 2014, serving sentences imposed on him for child sex offences following his pleas of guilty.

3. [25]

   The current sentence, together with the previous custodial sentences, are summarised in the following table.

4. [26]

   As a consequence of the offence in 1980 for which a suspended sentence of 2 years was imposed, the applicant’s name was placed on the Child Protection Register for a period of 8 years (until 2016). In March 2010, the applicant left Australia, having been transferred by the Roman Catholic Church to Rome. He returned to Australia on 7 December 2012 to visit his sister and undergo surgery for prostate cancer. He returned to Rome on 27 April 2013. On 30 October 2013, he returned to Australia to visit his sister. He had booked a return flight to Rome which was due to depart on 27 November 2013 but, on 5 November 2013, he was arrested and charged with the offences for which he was sentenced by Zahra SC DCJ.

5. [27]

   As can be seen, the applicant has been sentenced for a total of 24 offences (not including those on Form 1s) against 16 different children (X, DHO, DHA, GB, JS, MOR, BP, PH, AS, SC, DH, SB, JD, DP, CG, DJ), aged between 10 and 15 years, at several different schools, over a total period of 21 years (from 1966-1987). He has been sentenced by five different judges: a sentencing judge (on 28 March 2006); Zahra SC DCJ (on 27 November 2014); McLennan DCJ (on 16 December 2016), Armitage ADCJ (on 17 October 2018) and the sentencing judge (on 4 February 2022), four of whom have imposed full-time custodial penalties. The applicant has been in custody since 7 November 2014.

6. [28]

   The following outline of the facts is derived from the sentencing judge’s summary of the agreed facts in the reasons for judgment.

7. [29]

   The applicant was born in 1937. He became a Christian Brother and worked as a teacher in several schools. Between 1967 and 1971, the applicant worked as a teacher at St Mary’s Cathedral School, within the Sydney Diocese.

8. [30]

   In 1968, DP, who was born in 1957, started attending the school in Year 5. His teachers included secular teachers and those, such as the applicant, who were “anointed” members of the church. In 1969, the applicant became the head teacher of Year 6 and, as such, frequently taught DP, then aged 12-13 years. DP was interested in assisting with mass services as an altar boy. He performed this role once or twice a week and assisted at two services a day, at lunchtime and in the evening. The lunchtime service was a popular service for altar boys because it came with the opportunity of obtaining food from the tuck shop (which the applicant would open for that purpose) and time away from class.

9. [31]

   One evening, DP was the only altar boy on duty for the evening mass. The offender approached DP in his usual dark-coloured clerical robes and used the key to open the tuck shop, which was completely dark. When inside, the applicant grabbed DP from behind and wrapped an arm around his waist and another around his pants line, pulling down his pants and forcing DP to bend over. DP experienced extreme fear when he felt the applicant’s erect penis between his buttocks. DP struggled to free himself and ran outside. He pulled his trousers and underwear up and caught the bus home. On his arrival, he told his mother that the applicant had tried to have sex with him in the tuck shop.

10. [32]

    The following day, DP’s mother went to school and spoke to the principal to tell him that the applicant must not come near her son. The applicant continued in his role as head teacher for Year 6. He did not touch DP again.

11. [33]

    While DP told family members about the assault, it was not until 2019, when he learned of the conviction of George Pell that he decided to report the offence to police.

12. [34]

    CG was born in 1972 and, from 1983-1990, attended St Patrick’s College, Strathfield, where the applicant was the principal of the junior school. In May 1983, CG (then aged 10) attended a school camp at a convent in the Blue Mountains, as did the applicant.

13. [35]

    The applicant supervised the students while they were showering and directed them to drop their towels as “this was the way God intended”. The applicant patted CG on the buttocks before it was his turn to enter the shower.

14. [36]

    At about 8pm that evening, CG was asleep in a dormitory. A man came and lay beside him in a “spooning” position. CG felt that the man was aroused. The man then masturbated CG’s penis. When the man stood up to leave, CG recognised him as the applicant.

15. [37]

    The following night, the same thing occurred. CG was too scared to move or say anything.

16. [38]

    When CG returned to school, he accidentally hit a tennis ball into the garden and went to retrieve it. The applicant punished him by beating his hands with a strap.

17. [39]

    Although the school chapel choir was run by the applicant, CG wanted to join, believing that all activities would be conducted in a group setting. During practice, the applicant inserted three fingers into CG’s mouth to show how wide his mouth needed to be to sing properly. After the class, the applicant directed CG to stay back. The applicant pulled CG towards himself and touched his genitals and buttocks.

18. [40]

    After this incident, the applicant often directed CG to stay back. The applicant repeated the offending conduct for the rest of 1983. The applicant would also approach CG in class and press himself against his back. After school, the applicant would hit CG with a strap for alleged wrongdoings. On such occasions, the applicant would touch CG’s genitals and buttocks.

19. [41]

    In 1984, CG was in Year 6. He attended another camp in the Blue Mountains. The applicant directed CG to help him in a small room. While there, the applicant touched CG’s genitals. During both evenings, CG once again engaged in similar conduct to that referred to above (the shower ritual and the indecent assaults in bed).

20. [42]

    Subsequently, on a school trip to Canberra in 1984, the applicant continued to touch CG. Later that year, the applicant’s mother died and CG sang in the choir at her funeral. During the service, CG fainted. The applicant did not touch CG again. In 1985, CG moved to the senior school.

21. [43]

    DJ, who was born in 1973, started in Year 5 at St Patrick’s, Strathfield in 1984 where the applicant was then the principal of the junior school. DJ attended a school camp in the Blue Mountains.

22. [44]

    When DJ was in bed in the dormitory in the middle of the night, the applicant sat on his bed and moved his hands over DJ’s genitals and underneath his buttocks. This lasted for a “lengthy period of time”, during which the applicant said to DJ, “It’s alright if it feels good”; “You can’t tell anyone, you will be the one in the wrong if you do”; “You can’t tell mum and dad, you will let them down”; “No one will believe you”; and “This is between the two of us, you can’t tell anyone. It’s our little secret.”

23. [45]

    When the applicant left DJ, DJ saw him stop at another child’s bed. DJ did not tell anyone what had happened because he was fearful.

24. [46]

    When DJ got back from camp, he encountered the applicant regularly. In the summer of 1984-1985, the applicant insisted on being present to “supervise” the boys changing clothes. In 1984, DJ was in the locker room, changing for the swimming carnival. The applicant dried DJ’s genitals with a towel and, in the process, he groped and fondled DJ’s genitals, testicles and buttocks. Afterwards he insisted on pulling up DJ’s underpants. The groping continued. This occurred on several further occasions until about midway through the Year 6 term in 1985.

25. [47]

    In March 2019, DJ contacted police and provided a statement about the offending.

26. [48]

    The sentencing judge set out what occurred following the laying of the first charge against the applicant. Her Honour said:

27. [49]

    The following narrative, which is derived from the sentencing judgment, concerns the charges that led to the present convictions. It is relevant to ground 2, which concerns the time at which the applicant indicated that he would plead guilty to the offences of which he was convicted.

28. [50]

    On 20 June 2019, the applicant appeared before Burwood Local Court in relation to:

    1. (1)

       a charge concerning DP of assault with intent to commit buggery contrary to s 80 of the Crimes Act 1900 (NSW) (which carried a maximum penalty of 5 years’ imprisonment); and

    2. (2)

       charges relating to CG and DJ (which became counts 5 to 10 on the plea indictment).

29. [51]

    On 8 November 2019, the applicant was charged with offences relating to MM (Counts 2-4 on the plea indictment). From 28 November 2019, all of the charges relating to the four complainants (DP, CJ, DJ and MM) proceeded together.

30. [52]

    On 29 September 2020, the applicant was committed for trial. The notice of committal contained 12 charges. At that stage, the applicant was not prepared to plead to these matters as he intended to apply for a permanent stay of proceedings. The case conference certificate noted that if the application was unsuccessful, there would be likely to be a plea (in respect of which the applicant would submit on the appropriate discount).

31. [53]

    On 15 December 2020, the District Court refused the application for a stay and the matter was listed for arraignment on 19 February 2021. The matter was further adjourned to 19 March 2021, at which time the applicant indicated that he would defend the counts concerning DP and MM (counts 1-6 on the original indictment) but that the counts concerning CG and DJ (counts 7-12 on the original indictment which became counts 5-10 on the plea indictment) would be “short matters”. The matter was fixed for trial on 13 September 2021.

32. [54]

    On 30 July 2021, following plea negotiations, the plea indictment was presented, the accused was arraigned, and guilty pleas entered in relation to count 1 (concerning DP) and counts 5-10 (concerning CG and DJ). The previous charge of assault with intent to commit act of buggery against DP became a charge of indecent assault. The applicant maintained his plea of not guilty in relation to counts 2-4 (which related to MM).

33. [55]

    On 9 September 2021, the Crown informed the Court that there would be no further proceedings in relation to counts 2-4 (the charges concerning MM). The sentence hearing was set down for 20 October 2021.

34. [56]

    The sentencing judge assessed count 1 (DP) as being within the mid-range; counts 5-8 (CG) as being slightly above the mid-range, count 9 (DJ) as being at the mid-range and count 10 (DJ) as being above the mid-range.

35. [57]

    The sentencing judge did not find that the lack of planning mitigated the offending. Rather, her Honour said that the applicant “capitalised on opportunities to offend against [his victims] and on other occasions he created the opportunity to assault his victims.”

36. [58]

    The sentencing judge found that the applicant’s moral culpability was not reduced by subjective matters and that he was not a person of good character at the time he committed the offences. Her Honour found that the applicant “was assisted by his lack of relevant convictions and the respectable positions within the community and his employment that he held. Such standing assisted him to gain access to the victims who he then subsequently sexually abused.”

37. [59]

    The sentencing judge accepted that the applicant had good prospects of rehabilitation, was unlikely to reoffend “in light of his advanced years and change in circumstances” and was, to a limited extent, remorseful. Her Honour, when referring to the applicant’s cross-examination, said that the applicant was “reluctant to embrace the patently obvious fact that he was sexually attracted to young male school children or that he knew what he did was morally wrong at the time he did it”.

38. [60]

    The sentencing judge referred to the statutory ratio in the following passage from her reasons:

39. [61]

    Her Honour found that the Act mandated a discount of 10% for his pleas of guilty.

40. [62]

    The sentencing judge found, by reference to the factors required to be taken into account pursuant to s 3A of the Act, that the offending called for the application of the principles of general deterrence, punishment, accountability and denunciation. Her Honour accepted that less weight could be placed on specific deterrence.

41. [63]

    The sentencing judge confirmed that s 25AA of the Act required the applicant to be sentenced in accordance with “sentencing patterns and practices at the time of sentencing, not at the time of the offence, applying the maximum penalty and any standard non-parole period that existed at the time of the offence and not at the time of sentencing, and having regard to the trauma of sexual abuse on children as understood at the time of sentencing”. Her Honour was satisfied that no penalty other than imprisonment was appropriate.

42. [64]

    With respect to accumulation, the sentencing judge said:

43. [65]

    With respect to totality, her Honour noted that, at the time the applicant was charged (May 2019), he was serving the custodial portions of the sentences imposed by McLennan DCJ and Armitage ADCJ. The sentencing judge also noted that the applicant had been in custody solely in relation to the present offences (for which her Honour was to sentence him) since 15 December 2021 (when he would have been eligible for parole under the sentence imposed by Armitage ADCJ).

44. [66]

    With respect to the commencement date, her Honour referred to the obligation in s 24(a) of the Act to take into account time spent in custody in relation to the offence. Her Honour said further:

45. [67]

    Her Honour’s determination that the sentence ought commence on 30 July 2021 is the subject of the challenge in ground 2.

46. [68]

    Her Honour said, of the previous sentences imposed:

47. [69]

    These passages concerning totality are the subject of challenge in grounds 1 and 3.

48. [70]

    The sentencing judge addressed the applicant’s submissions on post-offence good character, as follows:

49. [71]

    The portion of the above passage which is highlighted in bold is the subject of ground 5.

The grounds of appeal

1. [72]

   It is convenient to address grounds 2 and 5 at the outset, before turning to grounds 1 and 3 (which will be considered together). Ground 4 (alleged manifest excess) need only be determined if none of the other grounds has been made out.

2. [73]

   As referred to above, the sentencing judge backdated the sentence to 30 July 2021, which her Honour described as the date of entry of the pleas of guilty.

3. [74]

   The applicant argued that, if the date of entry of the pleas of guilty was to be regarded as the relevant date for the commencement of the sentence, her Honour was in error in not taking into account the chronology summarised at [50]-[55] above (which the sentencing judge set out in the reasons to explain why the discount for the plea was 10%).

4. [75]

   The applicant argued that if the commencement date for the sentence was to be backdated to the time of his plea, it ought to have been backdated to 19 March 2021, which was when he alleged that he informed the Court that he would plead guilty to the counts concerning CG and DJ (albeit in euphemistic terms by indicating that these would be “short matters”).

5. [76]

   Section 47(2)(a) of the Act provides that a court may direct that a sentence of imprisonment commence on a day prior to the day on which it is imposed. Section 47(3) provides that, in deciding whether to backdate, a court is to take into account pre-sentence custody (which must be taken into account under s 24(a) of the Act). Further, back-dating may also be used to give effect to the totality principle, where, as here, at the time of sentencing, the offender is serving a sentence for other offending: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J); [1997] HCA 26.

6. [77]

   The sentencing judge was plainly aware of the chronology of the proceedings, including related to the entry of the pleas, having set it out in such detail in her reasons. The choice of a commencement date was a matter for the sentencing judge’s discretion. Thus, it was open to her Honour to determine that the sentence ought commence on 30 July 2021, which happened to coincide with the date on which the applicant actually entered pleas for each of the offences, as her Honour recognised. The applicant has not demonstrated any House v The King (1936) 55 CLR 499; [1936] HCA 40 error in this choice. Accordingly, ground 2 has not been made out.

7. [78]

   As set out above, the applicant adduced evidence of his post-offence good character. His character referees spoke of his good works in assisting the church in information technology and helping other prisoners, including with speaking and writing in English.

8. [79]

   Mr Tehan KC, who appeared with Mr Skinner for the applicant, submitted that the applicant’s post-offence good character comprised:

   1. (1)

      the IT assistance he had provided to the Catholic Church and the assistance, including with English language learning, which he had provided to fellow prisoners within protection; and

   2. (2)

      the 37-year period (from 1985-2022) during which it was said that he had not offended.

9. [80]

   He submitted that, having regard to these matters (of which (2) was by far the more significant), it was not open to the sentencing judge to find that his post-offence good character was entitled to “little weight”.

10. [81]

    The weight to be given to particular factors fell within her Honour’s sentencing discretion: Neal v The Queen (1982) 149 CLR 305 at 326 (Brennan J); [1982] HCA 55; approved in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [39] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). Thus, the weight to be given to post-offence character was a matter for the sentencing judge. The weight to be given to character varies according to all the circumstances of the case: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [36] (McHugh J). That her Honour said that it ought be given little weight indicated that it was taken into account (R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing)). This assessment was open to her Honour. For these reasons ground 5 has not been made out.

11. [82]

    This is sufficient to deal with ground 5. However, it is also necessary to address Mr Tehan’s submission that the sentencing judge (and this Court) should act on the basis that the applicant had not re-offended since 1986. This proposition was said to flow from three matters: first, the presumption of innocence; second, the lack of evidence of any further offences after 1986; and, third, the circumstance that the most recent conduct which had resulted in a conviction related to the offence against JD in 1986.

12. [83]

    The applicant is entitled to have taken into account as a matter in mitigation that he has no further convictions recorded for conduct after 1986. However, there is a distinction between a lack of further convictions and the positive finding for which Mr Tehan contended that the applicant has not, as a matter of fact, engaged in offending conduct after 1986.

13. [84]

    The presumption of innocence has an important, but limited, application. It relevantly applies only in criminal proceedings when a person is charged with a criminal offence and is rebutted if the person pleads guilty to that offence or is convicted of that offence. Accordingly, it has no relevant operation in sentencing proceedings.

14. [85]

    That there is no evidence before a sentencing judge of further offending conduct after 1986 does not mean that the Court ought infer that there was none. The question is to be determined as a matter of onus. If the Crown seeks to advance, for the purposes of sentencing, that an offender has re-offended and, therefore, has poor prospects of rehabilitation or that it is likely that the offender will re-offend, this is a matter in aggravation which must, accordingly, be proved beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). If an offender seeks to be sentenced on the basis that the offender ceased the offending conduct at a particular time, this is a matter in mitigation, which must be proved on the balance of probabilities: The Queen v Olbrich at [27]. If there is no evidence on the topic, the Court may neither sentence on the basis that the offending conduct has continued nor that it has ceased.

15. [86]

    In so far as Mr Tehan may be taken to have submitted that the sentencing judge ought to have been satisfied that the applicant did not re-offend because he no longer occupied teaching positions after about 1986, I reject the submission as it does not follow. While the positions which the applicant held in boys schools gave him ready access to boys in whom he had a sexual interest (which he tended to act upon), it would be naïve to infer that his demonstrated tendency to act on his sexual interest in boys between the ages of 10 and 15 ceased when he no longer held the positions which enabled him to abuse his authority over the boys and commit the offences. This is particularly the case where, as her Honour found, the applicant’s insight and remorse were limited. In these circumstances, I reject Mr Tehan’s submission that the sentencing judge ought, on the basis of “37 years of post-offence good character”, to have given post-offence character more than “little weight”. First, no such inference could be drawn (especially in circumstances where, for a substantial portion of those 37 years he was on the Child Protection Register or in custody) and, second, it was a matter for her Honour what weight to give to the applicant’s post-offence good character (evidenced by his providing IT and English language assistance), such as it was.

16. [87]

    It is also noteworthy that the applicant did not remove himself from teaching positions as a result of his tendency. Rather, the Catholic Church removed him from such positions as a consequence of the charge laid in about 1985. Further, the “rehabilitation” in which he engaged at Encompass House was run by the Christian Brothers Order, which paid for psychological counselling for complainants, whose complaints were the subject of charges which were dropped.

17. [88]

    Grounds 1 and 3 are, to some extent, related, since the delay in prosecution of the present offences (which arose from the delay in reporting) led to the applicant being sentenced after he had already been sentenced for several similar offences which were committed over a similar timeframe. However, they are discrete grounds and will be addressed separately

18. [89]

    In support of ground 1, the applicant relied on the following passage from this Court’s decision in R v Obbens [2022] NSWCCA 109 (Obbens), where Hamill and Dhanji JJ (Basten AJA agreeing) said, at [20]:

19. [90]

    Mr Tehan submitted that the denial to the applicant for the third time of what would otherwise have been almost certain release to parole on 16 December 2021 was “just as demoralising and crushing as the ‘return to imprisonment’ scenario referred to [in Obbens, which was delivered after the sentence had been imposed].” He contended that her Honour was in error in not taking into account what he described as the Obbens principle.

20. [91]

    I reject this submission. First, the statements in the passage from Obbens extracted above were observations which were apposite to the facts of the case and ought not be elevated to the status of a “principle”.

21. [92]

    Secondly, the sentencing judge expressly took into account the loss of parole occasioned by the imposition of a further custodial sentence. Her Honour said, of present relevance:

22. [93]

    While this is sufficient to deal with the “principle” raised by the applicant, I propose to address delay more generally in the context of the present sentence to explain why it is not a factor in mitigation.

23. [94]

    It is not uncommon for there to be a significant delay in the reporting of child sex offences, with the consequence that an offender may be at liberty for many years following the initial offending, with the opportunity to commit further offences, which, in turn, may not be the subject of charges for decades afterwards. The delay in the present case can be taken to be the consequence of the nature of the offending (sexual abuse of children, in this case, boys), which typically renders the victims loath to report the matter to authorities because of the fear, trauma and shame associated with it.

24. [95]

    It can be inferred that the applicant’s own conduct, such as his statements to DJ in respect of count 9 (extracted above) about keeping the matter secret, was designed to prevent DJ (and other victims) from reporting the offence. The extent of the applicant’s offending (as revealed by the offences to which he has been charged and pleaded guilty to date) was such that there was always a risk that, when he was serving a custodial portion of a sentence for one set of offences, he would be charged with further offences. That risk remains. I do not regard Obbens as having any particular relevance to the present case since the applicant has been in continuous custody since 7 November 2014.

25. [96]

    Further, in a case such as the present, it is difficult to see how delay could operate as a factor in mitigation. Indeed, in R v Spiers at [37]-[38], this Court said:

26. [97]

    I discern no error in the manner in which the sentencing judge took into account delay. Accordingly, ground 1 has not been made out.

27. [98]

    In support of ground 3, the applicant argued that the finding of special circumstances was, in effect, arid, because the ratio between the time spent in custody for all offences of approximately 11 years and 8 months from 7 November 2014 (the commencement of the sentence imposed by Zahra SC DCJ) until 29 July 2026 (the last day of the non-parole period for the sentence imposed by the sentencing judge) and the greatest potential parole period of 3 years (from 30 July 2026 until 29 July 2029) was in the order of 80%. This figure is to be compared with the ratio between the non-parole period (5 years) and the total term (8 years) of 62.5% in the sentence actually imposed by the sentencing judge.

28. [99]

    The applicant further submitted that, while the sentencing judge had said that she had considered the previous sentences imposed on the applicant and had found special circumstances (leading to an adjustment to the statutory ratio from 75% to 62.5%), her Honour had not, in fact, addressed the effect of accumulation on the adjustment for special circumstances. Mr Tehan submitted that, “[the sentencing judge] was taking it upon herself to craft a total sentence that she considered to be appropriate for all of the applicant’s offences.”

29. [100]

    The circumstance that the applicant was required to be sentenced on five separate occasions for offences committed between 1966 and 1987 gave rise to an important question of totality and the associated issue of accumulation. The principle of totality requires the total criminality to be considered, not only for the offences for which the offender must be sentenced, but also for those for which the offender has already been sentenced: Postiglione v The Queen at 308 (McHugh J); see also Wu v R [2011] NSWCCA 102; 211 A Crim R 88 at [53] (Giles JA). Further, the sentencing judge is to sentence on the basis that previous sentences imposed for the episode of criminality are correct and is not to attempt to alter them by the sentence imposed: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 (MAK) at [99] (Spigelman CJ, Whealy and Howie JJ).

30. [101]

    As I said in JL v R [2023] NSWCCA 99 at [129] (Ierace and Sweeney JJ agreeing):

31. [102]

    The sentencing judge was required to take into account the following principles, which are part of a consideration of totality:

    1. (1)

       severity is not linear; thus although a sentence of 7 years might be appropriate for one set of offences and 8 years for another, a sentence of 15 years for the combined offending may be out of proportion to the degree of criminality: MAK at [16];

    2. (2)

       on the one hand, an extremely long sentence may be “crushing” but, on the other, an offender may not be entitled to the “element of mercy in adopting such constraint”: MAK at [17]; and

    3. (3)

       care must be taken to ensure that public confidence in the administration of justice is not undermined by the perception that a discount is given for multiple offending: MAK at [18], referring to R v Knight [2005] NSWCCA 241; (2005) 155 A Crim R 252 at [112].

32. [103]

    It might be said that there is some tension between, on the one hand, the sentencing judge’s finding of special circumstances pursuant to s 44(2B) of the Act (which resulted in a ratio of 62.5% between the non-parole period and the total term) and her Honour’s omission to refer expressly to the effective ratio of 80% between the effective non-parole period of the overall sentence (which comprised the sentences imposed by Zahra SC DCJ, McLennan DCJ, Armitage ADCJ and the sentencing judge) and the total term.

33. [104]

    Where a sentencing judge fails to give reasons for setting a non-parole period which has this effect, it can be inferred that the sentencing judge overlooked the effect of partial accumulation: R v Nightingale [2005] NSWCCA 147 at [46] (Tobias JA, Buddin and Hall JJ agreeing); Wakefield v R [2010] NSWCCA 12 at [26]-[28] (Grove J, Simpson and R A Hulme JJ agreeing).

34. [105]

    But there was no such failure in the present case. The sentencing judge was meticulous, in the passages extracted in [58] above, to emphasise that her Honour fully appreciated the effect of partial accumulation in the sentence to be imposed, having regard to the sentences which had been imposed previously. The sentencing judge expressly adverted to the circumstance that there was a possibility that the applicant would face a “possible custodial sentence to commence at the end or during his current non-parole period”. Further, her Honour also addressed, in the context of totality, the question whether the sentence would be “crushing”. Although the sentencing judge did not refer expressly to the ratio in the order of 80% between the total effective period in custody (11 years and 8 months) and the effective maximum parole period (3 years), it was not necessary that her Honour do so, in light of her Honour’s statements as to her consideration of the effect of the sentence in an individual and overall sense.

35. [106]

    For these reasons, I am not persuaded that her Honour overlooked the effect of the sentence she imposed on the sentences which had already been imposed. To the contrary, the sentencing judge’s reasons demonstrate that the sentence arrived at was the product of a careful consideration of all relevant considerations, including the actual effect of the previous sentences on the length of the applicant’s custody.

36. [107]

    As referred to above in the extracted passage from JL v R, the principles of totality may often require some adjustment, at least to the non-parole portion of the sentence to be imposed by reason of sentences previously imposed. However, it does not follow that, in a case such as the present, an offender is entitled to a shorter non-parole period, or to avoid a further custodial term altogether, for the offending for which the offender is to be sentenced, in order to preserve the statutory (or lesser) ratio in an overall sense between the time in custody and the time on parole. It was open to the sentencing judge to refrain from reducing the non-parole period to give effect to the finding of special circumstances in the overall composite sentence. It was sufficient to adjust the ratio solely in relation to the sentence which the sentencing judge actually imposed.

37. [108]

    Had the applicant been sentenced in November 2014 for all the offences for which he was subsequently sentenced, it may have been that the sentence would have been structured so that he was only required to serve 75% (or some lesser percentage) of the total term in custody. But this circumstance cannot, beyond the requirements of totality, be allowed to constrain the discretion of the sentencing judge to determine the appropriate sentence. Further, as referred to above, the “delay” was a consequence of the nature of the offending and is, accordingly, not a mitigating circumstance.

38. [109]

    For these reasons ground 3 has not been made out.

39. [110]

    As none of the other grounds of appeal has been made out, it is necessary to address ground 4. The applicant submitted that the aggregate sentence was manifestly excessive as a consequence of the indicative sentences being themselves manifestly excessive.

40. [111]

    In support of ground 4, Mr Tehan relied on the following matters:

    1. (1)

       there was evidence that the applicant had shown acceptance of responsibility, victim empathy and remorse;

    2. (2)

       the applicant had not re-offended since 1986;

    3. (3)

       the applicant had engaged in rehabilitation many years ago;

    4. (4)

       the applicant was found to be unlikely to re-offend as his prospects of rehabilitation were good and he had a strong support network on his release from custody;

    5. (5)

       following the commission of the offences, the applicant had continued to work as a Christian Brother (not in a teaching role) and had undertaken good works, including since his imprisonment in 2014;

    6. (6)

       the applicant was, at the time of sentencing, 83 years old and had several significant health issues, including a compromised immune system and substantial loss of kidney function; and

    7. (7)

       the applicant had spent most of his time in custody undertaking employment and helping other prisoners in protection.

41. [112]

    As to (1), the sentencing judge was persuaded only of limited remorse. As to (2), this has been addressed above. While (3) is true, the context of the applicant’s involvement in rehabilitation tends to diminish the significance it might otherwise have had. The other matters would appear to be relatively uncontroversial.

42. [113]

    Whether a sentence is manifestly excessive is a conclusion which does not depend on the establishment of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).

43. [114]

    The indicative sentences may be relevant since they may reveal why an aggregate sentence is manifestly excessive: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40](11) and (12). However, this is not necessarily the case because an excessive indicative sentence may not result in an aggregate sentence which is manifestly excessive: Kerr v R [2016] NSWCCA 218 at [114] (Bathurst CJ, Hoeben CJ at CL and Price J agreeing). An appeal lies only against the aggregate sentence since this is the only sentence which has actually been imposed.

44. [115]

    For the purposes of addressing the submission that the indicative sentences are excessive, it is useful to compare the starting point for the indicative sentences (before the discount of 10% for the plea of guilty) with the maximum penalty and the assessment of objective seriousness. These are set out in the table below.

45. [116]

    A comparison between the pre-discount indicative sentences, the maximum penalties and the assessments of objective seriousness tends to indicate that the indicative sentences may be too high. However, as referred to above, the only sentence which can be appealed is the aggregate sentence, which was 8 years’ imprisonment with a non-parole period of 5 years.

46. [117]

    The sentencing judge correctly noted that the applicant had committed offences on 16 children at six schools over the course of 20 years. In referring to the overall offending in this way, her Honour can be taken to have had regard to proportionality, which requires a sentence to be imposed be neither greater nor lesser than the objective seriousness of the crime requires: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ). This does not indicate that her Honour was sentencing the applicant for all of the offending. Rather, her Honour was noting the context of the sentences for which she was to sentence the applicant.

47. [118]

    Having regard to the maximum penalties, seriousness of the offences, the fact that there were three victims (DP, CG and DJ) and the applicant’s substantial criminal history, which disentitled him to leniency, as well as all the other factors to which her Honour had regard, I am not persuaded that the aggregate sentence, whether as to the total term or to the non-parole period, was manifestly excessive. The harm done to the victims was substantial and involved an egregious breach of trust. The sentence imposed is not outside the range of appropriate sentences, having regard to all relevant factors, including the overall criminality of the offending conduct.

48. [119]

    For these reasons, ground 4 has not been made out.

Proposed orders

1. [120]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [121]

   PRICE J: I agree with the reasons of Adamson JA and the orders that her Honour proposes. I also agree with the additional remarks of Beech-Jones CJ at CL.