R v Obbens

BASTEN AJA: On 13 May 2022, the Court heard an appeal by the Director of Public Prosecutions against the inadequacy of a sentence imposed on the respondent in the District Court on 23 February 2022. Orders were made at the hearing dismissing the appeal.

I agree with the joint reasons. I would add the following observations.

If the current offending had been dealt with in 2016, when the respondent was sentenced to imprisonment for other similar offences, a community correction order would not have been an available additional punishment. Some additional punishment was appropriate for the further offences dealt with this year. Nevertheless, contrary to the Director’s submission, it did not have to be a further sentence of imprisonment.

Although counsel for the Director presented a clear and principled argument for a further custodial sentence, it was appropriate to consider the overall criminality and the overall punishment. It would not be appropriate for the offender to suffer a more severe level of punishment where offences committed in the same timeframe are dealt with at different times, rather than at one time. As explained in the joint reasons, the overall effect of the punishment in the present case was not manifestly inadequate. Nor was there error on the part of the sentencing judge that affected the outcome.

HAMILL AND DHANJI JJ: On 13 May 2022, we joined in orders dismissing an appeal by the New South Wales Director of Public Prosecutions (“the Director”) against the asserted inadequacy of a sentence imposed on William John Obbens by his Honour Judge M L Williams SC on 23 February 2022. These are our reasons for joining in that order. This judgment assumes familiarity with the sentencing judgment which is published as R v Obbens [2022] NSWDC 47.

The Director raised two grounds of appeal. The first was that the “sentencing judge erred by failing [properly to] apply the totality principle.” The second ground was that the “sentence pronounced is manifestly inadequate.”

The appeal was argued on the unstated assumption that the principle of totality, and its application by the sentencing Judge to the peculiar circumstances of the respondent’s case, would be determinative of both grounds of appeal and the appeal itself. We are not convinced that this assumption is correct, although, as in all cases involving multiple offences and several sentences, totality was an important issue to be considered. The real question at the heart of the appeal is whether the sentencing Judge was correct, “having considered all possible alternatives”, in rejecting the proposition that “no penalty other than imprisonment [was] appropriate.” [1] While Judge Williams did not directly address that question in his sentencing judgment, his Honour’s remarks and the sentence imposed reveal that was the conclusion he reached. Not only was that conclusion open to the sentencing Judge, it was obviously correct.

Judge Williams sentenced the respondent for a serious offence of indecent assault on a child less than 16 years who was under his authority. The maximum penalty at the time of the offence was six years’ imprisonment. There was no relevant standard non-parole period. A further, factually more serious, offence was placed on a Form 1 and taken into account in sentencing. [2] The offences were committed in the first half of 1989. The provision in s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to the offences so that the sentencing Judge was required to apply current sentencing patterns and practices having regard to what is now known of the trauma of sexual abuse on children. [3]

The facts were not in dispute and are set out in his Honour’s sentencing judgment. [4] In brief terms, in 1989, the respondent was a 44-year-old Christian Brothers dormitory master at a Catholic school, and the victim was a 12 or 13-year-old boarder. The victim came to the respondent with sore testicles and the respondent took the opportunity to feel his testicles and stroke his penis. After pulling his pants up the victim sat on the bed shaking with fear. He was unable to show the school nurse when he consulted her a short time later. The Form 1 offence was committed that night when the respondent sought out the victim, took him to a private space and insisted on checking his testicles again. He put his hand down the child’s pyjamas and felt his penis and testicles. The victim was so frightened he hid in the bathroom for the rest of the night.

Without being prescriptive, ordinarily the offence – taking into account the Form 1 matter and applying current sentencing patterns – would result in a full-time custodial sentence of some significance. Instead, Judge Williams imposed an 18-month community corrections order with the standard conditions. [5]

The reason for this lenient disposition was that the respondent had already served a 3-year aggregate sentence of imprisonment imposed by Judge Frearson SC in 2016 for three counts alleging similar offences committed between 1987 and 1989. The basic facts of those offences, and a summary of Judge Frearson’s reasons are also set out in Judge Williams’ judgment. [6] The offences were committed against three separate 13-year-old victims, each of whom was a student or boarder at schools at which the respondent was a School Master. As with the present offences, there was an egregious breach of trust. The first offence, committed in 1987, involved the respondent pressing his body against the child who could feel his erect penis against his back. This was not an isolated incident and further offences were committed against the same child later in that year. The second offence, also committed in 1987, involved the respondent unzipping the victim’s trousers and fondling his penis for a period of 5 to 10 minutes. The third count was preceded by the respondent disciplining the child by hitting him with a leather strap. The respondent then hugged the victim from behind pressing his groin into the child’s lower back. Again, this was not an isolated incident and similar offences were committed “on the [same] victim on a couple of later occasions”. [7]

The sentencing Judge analysed Judge Frearson’s sentencing judgment, [8] noting:

That is the barest overview of Judge Williams’ summary of Judge Frearson’s sentencing judgment. The appeal book on the present appeal included the 2016 judgment.

The respondent presented a substantial subjective case before Judge Williams. Again, this is summarised in the sentencing judgment. [9] The respondent’s rehabilitation, and extensive period of not offending, has continued since his incarceration in 2016. He continues to demonstrate insight into his offending and its impact on the victims. A reviewing psychologist indicated that the respondent expressed remorse and did not minimise his offending or possess any of the other cognitive distortions common to child sex offenders. [10] There is nothing to suggest he has committed any offence since 1990. Perhaps most significant for the purpose of the present appeal was the evidence concerning the difficulties he had in gaol and his life since his release in March of 2018.

The respondent described a significant degree of isolation in gaol. He was withdrawn from other prisoners and cited his schizoid psychological traits as the reason for this reclusion. [11] This experience is consistent with the possible diagnosis of avoidant personality disorder and related issues with socialisation identified in a psychological report prepared by Dr Rodriguez. [12] The respondent is a 76-year-old man with high blood pressure and cholesterol and a medical history of gallbladder and prostate issues, for which he takes daily medication. More recently he was diagnosed with sleep apnoea and uses a machine to manage that condition each night. In his evidence at the sentence proceedings, he reported difficulty in obtaining the correct medications for his medical conditions when he was in gaol. [13]

Since his release he has made several positive steps toward rehabilitation. He re-engaged with Dr Geraldine Robertson, a staff psychologist he consulted during the course of treatment he undertook for his sexual disorder in the mid-1990s. He had regular counselling sessions with her up until the date of sentence. Dr Robertson described the respondent as committed to therapy and exhibiting prosocial behaviours in the quiet life he has led since his release. [14] Members of the Congregation of Christian Brothers, many of whom wrote letters to the Court, indicate the ongoing support and oversight of the respondent which has occurred through an organisation-led “safety and care plan”, with which the respondent has steadfastly complied. [15]

The Director made no criticism of his Honour’s findings as to the facts of the offences, the respondent’s subjective case, assessment of the objective criminality of the offence charged or treatment of the offence on the Form 1. Nor was it suggested that his Honour erred in accepting, contrary to the Prosecutor’s submission made at first instance, that the respondent was entitled to some leniency as a result of his charitable works and lack of criminal record outside of the offending dealt with by Judge Frearson and Judge Williams and a further matter dealt with in 1989 by the imposition of a bond without conviction. [16] Rather, it was submitted that his Honour erred in his application of the totality principle and/or that the imposition of a community corrections order was a manifestly inadequate sentencing response.

The parties at first instance, and on appeal, submitted that one question to be addressed in considering the totality principle was whether the sentence imposed could encompass the whole of the criminality under consideration, that is the offending dealt with by both Judge Frearson and Judge Williams. That is a consideration, closely related to the totality principle, when a judge is evaluating whether to impose cumulative or concurrent sentences. [17] At times, the submissions seemed to be addressed to the question of whether the sentencing Judge in 2016 would have imposed a longer sentence had the Judge been aware of the offences with which Judge Williams was concerned. That is not the correct approach and may have arisen from a misapprehension of remarks made in cases such as R v Cattell [2019] NSWCCA 297; (2019) 280 A Crim R 502, McIntosh v R [2015] NSWCCA 184 and Woodward v R [2017] NSWCCA 44. The real question, which might more properly be categorised as a question of proportionality rather than totality, is whether the total sentencing outcome (that is the 3-year full-time sentence imposed by Judge Frearson together with the 18-month community corrections order under appeal) could encompass the whole of the criminality. [18] So much was acknowledged by the Director in the following exchange in argument on the hearing of the appeal:

The Director placed particular reliance on the decision of this Court in R v Cattell and even suggested that the factual circumstances were analogous. However, a perusal of the facts and circumstances of that case demonstrate that the circumstances were quite different. It is sufficient to note that the nature and number of offences dealt with in that case were such that the only question in issue, at first instance and on appeal, was “how long?” While a sentence of imprisonment was imposed in the District Court, that sentence was found to be manifestly inadequate.

The determination of the sentence for the single offence in the present case gave rise to an important aspect of the totality principle which applies when there is a delay in the prosecution of multiple offences and a fragmentation of the sentencing proceedings. It can be readily accepted that in cases of sexual offending that remain undisclosed for many years, delay will not automatically operate as a mitigating factor. In such cases the offender will often have enjoyed the benefit of a place in the community to which (usually) he was not entitled: see R v Cattell [2019] NSWCCA 297 and the cases there discussed. The situation is, however, quite different where a person is prosecuted and imprisoned for multiple offences and, some time after serving that sentence additional offending is brought to light. The delay between prosecution and imprisonment and a second prosecution is unlikely to be a period in which the offender went about life free from opprobrium. Further, the bringing of a subsequent prosecution, with the potential for a return to imprisonment, is an additional stress and disruption that would not have been suffered had all offending been dealt with together. The result is that a return to prison to serve a separate term of imprisonment is likely to involve a significantly greater punishment than would be the case had the first term of imprisonment been longer as a result of all the offences having been dealt with together.

The issue was explained by Street CJ in R v Todd [1982] 2 NSWLR 517 at 519-520:

This passage was quoted and approved by the High Court in Mill v The Queen (1988) 166 CLR 59 at 64; [1988] HCA 70 (Wilson, Deane, Dawson, Toohey and Gaudron JJ). [20] It had resonance in the circumstances of the present case. Although Judge Williams did not refer to these authorities in the sentencing judgment, it is clear that his Honour instinctively applied this important principle of fairness to the respondent’s case.

The parties focused on the following passage in Judge Williams’ remarks:

We accept the Director’s submission that this passage contains an evaluative error if it is read literally and taken to suggest that “no greater sentence” was appropriate, considering the additional charged offence, the Form 1 offence and the fact that there was a fourth victim of the respondent’s predatory conduct.

However, the real vice in the passage is that this was not “the ultimate question” when it came to the issue of totality, let alone the determination of the appropriate sentence to be imposed on this respondent, given the history of the matter and his individual circumstances. The real question was whether, having regard to the option of a community corrections order and the whole of the circumstances of the case, the only appropriate sentence was one of imprisonment. It is accepted that a community corrections order constitutes a particularly lenient disposition of a case such as this but, as the judgment of the five-member bench of the Victorian Court of Appeal shows, there are times when such an order is in the best interests of all concerned. [21] Given the punishment already meted out to the respondent by serving the 2016 sentence, his experiences in gaol and his personal circumstances, this was clearly such a case.

The imposition of a community corrections order represented the kind of “flexibility of approach” referred to by Street CJ in R v Todd and endorsed by the High Court in Mill v The Queen.