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District Court 7 August 2014

R v Gaven

[2014] NSWDC 189

Sexual offences
CRIMINAL LAW SENTENCE INDECENT ASSAULT BY PERSON IN AUTHORITY

Citation: R v Gaven [2014] NSWDC 189
Court: District Court of New South Wales
Date: 7 August 2014
Judge(s): Berman SC DCJ

Background

The offender was a Catholic Brother employed at a boys' high school, holding the position of Vice President with responsibility for discipline and supervision of boarding students. In 1988, he was found by a jury to have committed an indecent assault against a Year 8 boarder by placing his hand inside the boy's pyjama pants and touching his bare bottom while other students were present in the dormitory.

The jury convicted on one count of indecent assault by a person in authority but was unable to reach a verdict on four other counts. The offender was already serving a sentence of seven years and six months, with a non-parole period of four years and six months, for other historical sexual offences against boys at the school, imposed following an earlier trial before Garling J.

Berman SC DCJ was required to impose a sentence for the single count on which the jury returned a guilty verdict, to be served cumulatively (to an appropriate extent) upon the existing sentence.

  • What sentencing tariff applies to an offence committed in 1988 but prosecuted decades later?
  • What was the appropriate sentence, having regard to the objective gravity of the offending and the applicable historical tariff?
  • Whether special circumstances existed justifying a non-parole period that was a smaller proportion of the head sentence than the statutory ratio would otherwise require.
  • How the principle of totality applied when accumulating the new sentence on the existing one.

Decision

The binding sentencing principle required Berman SC DCJ to apply the tariff that would have applied at or shortly after the time of the offending in the late 1980s, not the standards that courts apply today. His Honour expressed clear disagreement with this rule, noting that the past thirty years had substantially increased judicial understanding of the harm caused by child sexual abuse. He observed candidly that sentencing offenders according to outdated standards perpetuates errors that sentencing courts made at the time, and that offenders benefit from those historical mistakes even where they are now recognised as wrong. Despite his reservations, his Honour acknowledged the obligation to apply the law as it stands while recording his view that reform is warranted.

On the objective facts, his Honour found the physical act at the lower end of the range of indecent assault, but identified significant aggravating features. The offending was not isolated: tendency evidence from multiple witnesses established a pattern of sexualised conduct toward boys at the school. The offender committed the act openly, in the presence of other students, reflecting his confidence in the authority he held over the boys in his care. The complainant was in a position of particular vulnerability given the school's residential and disciplinary structure, placing this offender-victim relationship toward the higher end of the authority spectrum.

His Honour accepted that the offender was likely to serve his sentence in protective custody, which can carry harsher conditions, but found this was already factored into comparable sentences for similar offending and warranted only modest weight. Special circumstances were found to exist, given the accumulation arrangement and the uncertainty about which sentencing regime would have applied in the late 1980s. Applying the totality principle, the sentence was ordered to commence three months before the expiry of the existing non-parole period.

Orders Made

  • Non-parole period of nine months, commencing 21 June 2017 and expiring 20 March 2018.
  • Head sentence of eighteen months.
  • The offender becomes eligible for release to parole on 20 March 2018.

Key Takeaways

  • A binding sentencing principle requires courts to apply the tariff in force at or near the time of the offending, even where that tariff is now regarded as inadequately low for offences involving child sexual abuse.
  • Berman SC DCJ stated expressly that this rule perpetuates historic errors by sentencing courts and recorded his view that the law should be changed, while acknowledging he was bound to apply it.
  • Tendency evidence admitted at trial to establish a pattern of conduct does not become available as a basis for sentencing where the offender was acquitted or the jury was discharged on the counts to which it related; its relevance at sentence is confined to what it establishes about the character of the proven offending.
  • Special circumstances justifying a reduced non-parole period ratio may arise from the combination of sentence accumulation and uncertainty about which historical sentencing regime would have applied at the relevant time.
  • Where an offender is likely to serve time in protective custody, this may warrant some reduction, but only to the extent the evidence actually establishes harsher conditions, and courts note that comparative sentences for similar offences typically already reflect this consideration.

Legislation and Cases Referenced

Legislation:
- Parole of Prisoners Act 1966 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
No specific cases were cited in the text of the judgment.