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5
Court of Criminal Appeal 6 December 2000

R v AB [No 2]

[2000] NSWCCA 467

Also reported as [2000] 117 A Crim R 473
Sexual offences
CRIMINAL LAW SENTENCING COMMISSION OF OFFENCES VOLUNTEERED EXTRADITION RIGHTS WAIVED PLEAS OF GUILTY CRIMINAL LAW

Citation: AB [No 2] v R [2000] NSWCCA 467
Court: NSW Court of Criminal Appeal
Date: 6 December 2000
Judges: Spigelman CJ, O'Keefe J, Barr J

Background

The appellant, a former teaching Brother in a Catholic religious order, was sentenced in the District Court to a head sentence of 18 years with a minimum term of 13.5 years for 67 sexual offences against 15 children committed between 1976 and 1987. The victims were pupils at schools where the appellant taught. He left Australia in 1989, apparently aware of police complaints against him, and relocated to the United States and Canada, where he obtained work as a teacher and headmaster and married.

Extradition proceedings commenced in 1992 in respect of 28 offences. After the US Supreme Court ruled against his opposition to extradition, the appellant returned to Australia in April 1996. On his return, he not only confessed to the extradition offences but voluntarily revealed an additional 39 sexual offences against nine further children, extending the offending period by eight years. Those additional offences could not have been charged under the terms of the extradition treaty without the consent of US authorities.

The appellant's initial appeal against sentence was dismissed by the Court of Criminal Appeal. The High Court then remitted the matter to the Court of Criminal Appeal for reconsideration, finding that the sentencing discretion had miscarried. The present judgment is the Court of Criminal Appeal's determination on remittal.

  • What was the proper scope of the Court of Criminal Appeal's task on remittal from the High Court: was it confined to two specific factors identified in the joint High Court judgment, or was it required to exercise a fresh sentencing discretion across the whole sentence?
  • What sentencing discount was appropriate to reflect the appellant's voluntary disclosure of additional offending beyond the extradition charges?
  • What discount was appropriate for the waiver of legal rights under the extradition treaty by volunteering offences that could not otherwise have been prosecuted?
  • What discount was appropriate for the utilitarian value of guilty pleas?
  • How should those discounts interact with, or overlap with, the appellant's demonstrated remorse and contrition as subjective mitigating factors?

Decision

The Court first addressed the scope of the remittal. The actual order of the High Court directed the matter be dealt with "in accordance with these reasons," a phrase that encompassed all reasons given by the majority, not merely the joint judgment of Gummow and Callinan JJ. The Court held that it was required to exercise its full sentencing discretion afresh, consistent with the long-established principle in House v The King (1936) 55 CLR 499, rather than confining itself to two discrete factors.

On the substance of the sentence, the Court identified three overlapping considerations warranting a significant reduction from the sentence that would otherwise have been imposed. First, the appellant had voluntarily revealed offending that went well beyond what he could have been compelled to answer for under the extradition treaty. Second, in doing so he effectively waived valuable legal rights that would have shielded him from prosecution for those additional offences. Third, his guilty pleas carried utilitarian value in sparing victims from testifying.

The Court acknowledged that these utilitarian factors overlapped to some degree with the subjective mitigating considerations of remorse and contrition. The confession and cooperation were treated as evidence of genuine remorse, not merely as a separate head of discount, consistent with the approach in R v Gallagher and R v Thomson; R v Houlton.

By majority, the Court determined that a reduction of 25 percent from the appropriate head sentence was warranted. This produced a head sentence of 15 years and a non-parole period of 12 years. Barr J (with whom Spigelman CJ agreed) held that no lesser non-parole period would adequately reflect the objective gravity of the offending, and that a three-year parole period would be sufficient to allow the appellant to reintegrate into the community under supervision.

Orders Made

  • Sentences for offences against complainants CA and AT were quashed and replaced with new, specific sentences commencing 15 August 2003.
  • For complainant CA: imprisonment of 18 months on one charge and 12 months on each of four further charges, all commencing 15 August 2003.
  • For complainant AT: imprisonment of 12 months on three charges, two years on five charges, and seven years on one charge (charge 68752/28), all commencing 15 August 2003.
  • A non-parole period of four years fixed in respect of the seven-year sentence on charge 68752/28, with the appellant eligible for parole on 14 August 2007.
  • No non-parole period fixed for the remaining resentenced charges.
  • All other sentences imposed by the District Court were left undisturbed.
  • Overall head sentence: 15 years; overall non-parole period: 12 years.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where the High Court remits a matter "to be dealt with in accordance with these reasons," the appellate court must consider all reasons of the majority, not limit itself to specific factors discussed in a joint judgment.
  • Voluntary disclosure of criminal conduct beyond the scope of extradition charges can attract a meaningful sentencing discount, reflecting both the public interest in encouraging full disclosure and the relinquishment of legally protected rights under extradition treaty provisions.
  • A 25 percent reduction from the appropriate sentence was held to be the correct discount where an offender volunteered additional offending, waived extradition protections, and pleaded guilty, taken together.
  • Utilitarian mitigating factors and subjective factors such as remorse are not always discrete and additive: where voluntary confession is itself evidence of contrition, the two considerations overlap rather than compound.
  • In cases of historic institutional sexual offending, the objective gravity of the conduct remains a dominant consideration that sets a floor on the non-parole period, even where significant mitigating factors are present.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Extradition Act 1988 (Cth), s 42
- Treaty on Extradition between Australia and the United States of America (1974) and amending protocol (1990)

Cases
- AB v The Queen (1999) 198 CLR 111
- House v The King (1936) 55 CLR 499
- Pearce v The Queen (1998) 194 CLR 610
- Lowndes v The Queen (1998-1999) 195 CLR 665
- R v Thomson; R v Houlton [2000] NSWCCA 309
- R v Gallagher (1989) 44 A Crim R 256; (1991) 23 NSWLR 220
- R v Williscroft [1975] VR 292
- R v Cartwright (1989) 17 NSWLR 243
- R v Foster (1992) 25 NSWLR 732
- R v Perez-Vargas (1986) 8 NSWLR 559
- R v Ridsdale (1995) 78 A Crim R 486
- R v Itamua [2000] NSWCCA 502
- R v Many (1990) 51 A Crim R 54
- Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24
- CDJ v VAJ (1998-1999) 197 CLR 172
- R v Davies (1978) 68 Cr App R 319
- R v Lowe (1977) 66 Cr App R 122
- The Queen v Golding (1980) 24 SASR 161
- R v Hayes (1981) 3 A Crim R 286