Citation: R v Pemble [2015] NSWDC 168
Court: District Court of New South Wales
Date: 23 July 2015
Judge: Berman SC DCJ
Background
The offender, a former Marist Brother and teacher, pleaded guilty to one count of indecent assault on a male under s 81 of the Crimes Act, with two further offences on the same provision taken into account on a Form 1 (a procedural mechanism allowing related offences to be acknowledged at sentencing without separate conviction). The offences were committed in 1972 against a 12-year-old student at a Catholic high school in Maitland, New South Wales.
The offences involved repeated physical contact of a sexual nature in a locked sports room on school grounds. The most serious incident involved the removal of clothing, body contact, and the offender ejaculating against the victim. The victim did not report the conduct until 2013, after disclosures about abuse in the Catholic Church prompted him to tell his wife.
The offender was 67 years old at sentencing and had no subsequent criminal history. He had gone on to a career as a teacher and headmaster before retiring to Belgium.
Legal Issues
- What sentencing tariff applies to historical sexual offences: the standards prevailing at the time of offending, or current standards?
- What sentence was appropriate given the objective seriousness of the conduct, the offender's personal circumstances, the victim's impact, and the applicable historical tariff?
- Whether a suspended sentence or a full-time custodial sentence was the appropriate outcome.
Decision
His Honour applied the established legal principle that offenders sentenced for historical offences must receive a sentence reflecting the tariff that applied at the time of offending, not the higher contemporary standards. Berman SC DCJ expressly disagreed with this requirement, observing that it perpetuates errors made by earlier courts and benefits offenders from standards now known to be wrong. However, he made clear that his personal disagreement did not permit him to depart from the law as it stands.
Applying the historical tariff, the court assessed the objective seriousness of the offending. His Honour noted that the conduct was significantly more serious than many offences covered by s 81, involving removal of clothing, skin-to-skin contact, and ejaculation. The position of trust the offender occupied as a teacher, and the foreseeable and lasting harm caused to the victim, were both treated as aggravating features.
The victim impact statement described severe consequences that persisted for decades: truancy, academic failure, anxiety, difficulty in adult relationships, and renewed distress triggered by media coverage of clergy abuse. His Honour accepted these consequences as entirely foreseeable.
The court rejected a suspended sentence as insufficient punishment and denunciation in the circumstances, notwithstanding the offender's age, medical conditions, and the likelihood of harsher custody conditions in a protection setting. A full-time custodial sentence was imposed. Special circumstances were found, primarily because non-parole periods in 1972 were generally well below 75% of the head sentence, justifying a more favourable ratio between non-parole period and head sentence.
Orders Made
- Non-parole period of 9 months, commencing 23 July 2015, expiring 22 April 2016
- Head sentence of 18 months imprisonment
- Release to parole on 22 April 2016
Key Takeaways
- The District Court confirmed and applied the rule that sentencing for historical offences must follow the tariff prevailing at the time of offending, even where that tariff is now regarded as inadequate. Berman SC DCJ noted his disagreement with this approach but acknowledged it was binding on him.
- A sentencing court may express the view that a legal rule is wrong and should be changed, but is not entitled to ignore it.
- The lasting psychological harm to a victim of childhood sexual assault, including effects on schooling, relationships, and mental wellbeing persisting over many decades, was treated as both significant in its own right and as entirely foreseeable at the time of offending.
- Personal mitigating factors, including advanced age, medical conditions, risk of harder custody conditions, and an otherwise blameless record, did not displace the requirement for full-time custody where the objective seriousness of the offending and the need for denunciation were sufficient.
- Special circumstances permitting a lower-than-standard non-parole period can arise in historical cases where the sentencing norms of the relevant era involved non-parole periods substantially shorter than those typically imposed today.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 81 (now repealed) — indecent assault on a male, maximum penalty five years imprisonment
Cases:
No cases were cited in the provided text.