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District Court 25 February 2016

R v Robert Flaherty

[2016] NSWDC 124

Sexual offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES HISTORICAL 1970S AND 1980S

Citation: R v Robert Flaherty [2016] NSWDC 124
Court: District Court of New South Wales
Date: 25 February 2016
Judge: Cogswell SC DCJ

Background

The offender, a Roman Catholic parish priest, faced sentencing on five counts of indecent assault on a male contrary to s 81 of the Crimes Act 1900. The offences were committed between 1971 and 1982 against three teenage boys who were parishioners at churches where the offender served. Section 81 has since been repealed, but it applied at the time of the conduct and carried a maximum of five years imprisonment per offence.

The offender pleaded guilty to three counts at the earliest available opportunity and was convicted by a jury on the remaining two counts following a trial at Parramatta in September 2015. The offences ranged in gravity from touching a victim's genitals over clothing, through mutual masturbation, to oral sex and anal penetration of a sleeping teenage boy, all committed in settings where the offender had placed himself in a position of trust and physical proximity.

At the time of sentencing the offender was 72 years old and in very poor health. The central sentencing tension was between the seriousness of the offending, including the gross breach of trust by a priest, and the significant mitigating weight of the offender's advanced age and deteriorating physical condition.

  • What was the objective seriousness of each offence, given the conduct occurred 30 to 45 years ago under laws since repealed?
  • How should sentencing principles for historical sexual offences be applied, including the use of laws and community standards at the time of offending?
  • What discount applied to the three counts attracting an early guilty plea?
  • Whether the offender's age, very poor health, and short life expectancy warranted a non-custodial sentence or a reduced custodial term, and whether any sentence would amount to an effective life sentence.
  • Whether an aggregate sentence was appropriate and, if so, what its structure should be.

Decision

The District Court examined each offence individually before assessing overall criminality. The court found the conduct against V3 to be the most serious: the offender performed oral sex on a sleeping early teenager and then attempted anal penetration, an act the court characterised as conduct that would constitute more serious offences under the law as it now stands. Offences against V1 and V2, while less severe, still involved deliberate grooming and exploitation of boys in the offender's pastoral care.

The court applied the sentencing principle, established in authorities including Ryan v The Queen and R v Moon, that an offender must be sentenced according to the law as it stood at the time of offending. This meant the maximum penalty was five years per count and the court could not simply apply contemporary community standards as if harsher modern offences applied. At the same time, the court acknowledged that the conduct would now attract far more serious charges and that the breach of priestly trust remained a significant aggravating feature.

The offender received a 25 per cent discount on the three guilty-plea counts. His advanced age and serious ill health were accepted as genuine mitigating factors, raising the question whether imprisonment would amount to a disproportionate, effectively terminal, sentence. The court weighed short life expectancy against the need to reflect punishment, specific and general deterrence, denunciation, and the interests of the victims.

After balancing these competing considerations, the court imposed an aggregate custodial sentence, structured with a non-parole period. The court acknowledged the real prospect that the sentence, given the offender's health, could result in his death in custody, but found that the gravity of the offending and the principles of sentencing did not permit a wholly non-custodial outcome.

Orders Made

• Matter listed for 2 o'clock on Friday 26 February 2016
• Bail continued
• Applicant to be released to go home tonight

Key Takeaways

  • Under the principle confirmed in Ryan v The Queen, an offender sentenced for historical sexual offences must be sentenced according to the maximum penalties and legal framework that applied at the time of the offending, not under later, harsher provisions.
  • A 25 per cent discount on sentence is available where a guilty plea is entered at the earliest available opportunity, as confirmed by Court of Criminal Appeal authority, on the basis that it conserves court resources and reduces delays for other accused persons.
  • Advanced age and very poor health, including a short life expectancy, constitute genuine mitigating factors in sentencing but do not automatically preclude a full-time custodial sentence where the offending is sufficiently serious.
  • Where a custodial term may, in practical terms, extend to the end of a frail offender's life, the sentencing court must weigh whether that outcome is a disproportionate response, but the gravity of child sexual abuse committed in breach of priestly trust can still justify imprisonment notwithstanding that risk.
  • An aggregate sentencing approach is available in New South Wales where an offender faces multiple related counts, allowing the court to impose a single combined sentence rather than calculate each term individually and then accumulate or concur them.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 81 (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- R v Moon [2000] NSWCCA 534; 117 A Crim R 497
- Barton v R [2009] NSWCCA 164
- Magnuson v The Queen [2013] NSWCCA 50
- Pfeiffer v R [2009] NSWCCA 145
- R v Mammone [2006] NSWCCA 138
- R v Sopher (1993) 70 A Crim R 570