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District Court 26 September 2013

R v Martin HARMATA

[2013] NSWDC 214

Sexual offences

Citation: R v Martin Harmata [2013] NSWDC 214
Court: District Court of New South Wales
Date: 26 September 2013
Judge: Colefax SC DCJ

Background

The offender was a teacher and professed member of the Patrician Brothers Order who committed four indecent assault offences against three male students at Patrician Brothers College, Blacktown, in 1985 and 1987. The victims were aged between 11 and 13 at the time. The offences ranged from touching a student's genitals in a locked gym to groping a student's leg in the school playground and sustained sexual abuse of a third student.

The offender was not arrested until early 2013, approximately 26 years after the offences. He pleaded guilty and appeared for sentence in September 2013. A fourth incident involving one of the victims was taken into account on a Form 1 (a procedure allowing related offences to be considered in sentencing without a separate conviction).

The offences were charged under the then applicable provisions of the Crimes Act 1900, each carrying a maximum penalty of six years imprisonment. The court noted that the legal landscape surrounding both the offences and sentencing principles had changed substantially in the intervening decades.

  • Whether the sentencing court should apply historical sentencing patterns (the so-called "tariff") for child sexual offences from the 1980s, in addition to the then applicable statutory maximum penalties
  • How to approach disputed facts in the sentencing process, including facts not agreed between the parties
  • The appropriate individual and aggregate sentences, including the applicable discount for an early guilty plea
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence

Decision

The court engaged with the contested question of whether historical sentencing patterns from the 1970s and 1980s could be taken into account when sentencing for historical offences. Colefax SC DCJ applied the majority position in MPB v R [2013] NSWCCA 213, which held that earlier sentencing practices are relevant, but only where the court has a clear picture of what those practices were. The court observed that sentencing patterns for child sexual offences in the 1980s resulted in shorter sentences than would be imposed today for equivalent conduct.

The judgment contains notable criticism of how the prosecution prepared the facts for sentence. The court observed that disputed factual matters should either be excluded from the materials placed before the court entirely, or be resolved through a contested sentencing hearing. Placing disputed facts before the court without resolution was described as unsatisfactory.

On the question of the offending itself, the court emphasised that even conduct characterised as lower-level sexual abuse can produce catastrophic psychological consequences for victims. The victim impact material demonstrated serious and ongoing harm to all three victims. The court accepted that the offender had no prior or subsequent criminal history, had expressed remorse, and had made positive contributions to others over his life, but gave these matters limited weight in the context of the serious breach of trust involved.

The court applied a 25 per cent discount to each sentence for the early guilty plea, declined to find special circumstances, and imposed an aggregate sentence of seven years imprisonment with a non-parole period of three years and six months.

Orders Made

  • The offender was convicted of one offence of indecent assault on a person under 16 years of age, and three offences of indecent assault on a person under 16 years of age and under authority
  • An aggregate sentence of seven years imprisonment was imposed
  • Non-parole period of three years and six months, backdated by 77 days, commencing 11 July 2013 and expiring 10 January 2017
  • Balance of sentence of three years and six months, commencing 11 January 2017 and expiring 10 July 2020
  • Non-publication orders confirmed in respect of the names of the victims

Key Takeaways

  • The District Court applied the MPB v R majority position that historical sentencing patterns are relevant to sentencing for historical offences, but only where those patterns are clearly established before the court.
  • Sentencing patterns for child sexual offences in the 1980s were lower than contemporary equivalents, a factor the court was required to weigh when imposing sentence for offences committed in that era.
  • A significant procedural point was identified regarding disputed facts: where facts are not agreed, they must either be excluded from the sentencing materials or resolved through a contested hearing; presenting unresolved disputed facts to a sentencing court is procedurally unsatisfactory.
  • Even where individual acts of sexual abuse might be characterised as relatively low-level in isolation, the court found that such conduct can produce severe and lasting psychological harm to victims, a consideration that weighed heavily in the sentencing exercise.
  • Under the transitional provisions applicable after 2010, an aggregate sentence can be imposed for offences committed at any time, including historical matters predating the aggregate sentencing regime.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1) and 61E(1A) (as they applied in 1985 and 1987)

Cases
- MPB v R [2013] NSWCCA 213
- Dousha v R [2008] NSWCCA 263
- AJB v R (2007) 169 A Crim R 32
- PWB v R [2011] NSWCCA 84