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District Court 29 July 2016

R v Brian Joseph Spillane

[2016] NSWDC 337

Sexual offences
SENTENCE HISTORIC OFFENCES INDECENT ASSAULT AND ACT OF INDECENCY SENTENCING RANGE PAROLE PERIOD CUMULATIVE SENTENCE

Citation: R v Brian Joseph Spillane [2016] NSWDC 337
Court: District Court of New South Wales
Date: 29 July 2016
Judge: Hatzistergos DCJ

Background

The offender, a former Catholic priest born in 1943, pleaded guilty to three counts of aggravated indecent assault and one count of indecent assault under the Crimes Act 1900 (NSW). The offences were committed against four male boarding students at St Stanislaus College, Bathurst, during the period 1986 to 1989, when the offender was serving as the College chaplain.

The offences involved the offender exploiting his position of authority and pastoral trust to engage in inappropriate physical contact, including kissing complainants on the mouth and, in one instance, touching a complainant's penis through his clothing during what was framed as a confessional session. The complainants were aged between 13 and 17 at the time. Each was emotionally vulnerable in some way, and the offender used counselling, prayer, and confessional settings to gain their trust.

The matter came before Hatzistergos DCJ for sentencing. The offender had previously been sentenced by Woods DCJ for related offences, and the court was required to consider the new sentence in the context of that existing sentence, applying the totality principle.

  • What was the appropriate sentence for each offence, given their historic nature and the legislative framework in force at the time they were committed?
  • How should the court apply the sentencing principles for historic sexual offences, including the requirement to apply the law as it stood at the time of the offending?
  • What weight should be given to the guilty plea, the offender's age, ill health, and other mitigating factors?
  • What was the correct approach to cumulation and totality where the offender was already serving a sentence for related offences imposed by a different judge?
  • What was the appropriate ratio between the head sentence and the non-parole period for each count?

Decision

Hatzistergos DCJ sentenced the offender by reference to the legislation in force at the time of the offences, as required when sentencing for historic offences. The applicable maximum penalties were 6 years for each aggravated indecent assault and 4 years for the indecent assault. The court accepted that, while the offences did not involve the most intrusive forms of sexual contact, their commission within a position of pastoral and institutional authority, and in some cases during the administration of religious sacraments, elevated their objective seriousness.

The court identified a number of aggravating factors: the offender was in a position of authority over each complainant, the victims were particularly vulnerable (young boarders away from their families), and the offending involved a breach of trust in a religious and counselling context. Mitigating factors included the guilty pleas, the offender's advanced age, ill health, and the absence of any criminal history beyond the related matters for which he had previously been sentenced.

On totality, the court considered the sentence already being served following the Woods DCJ proceedings and structured the new sentences to run cumulatively to a degree, while ensuring the overall sentence was not disproportionate to the totality of the offending. The court applied the principle that a sentencing court must stand back and consider whether the combined effect of all sentences properly reflects the totality of criminality.

The court fixed non-parole periods in accordance with the statutory ratio applicable under the legislation in force at the time of the offences, noting that the sentencing regime under the Probation and Parole Act 1983 (NSW) and the Sentencing Act 1989 (NSW) governed the determination of the non-parole period for the relevant counts.

Orders Made

  • The offender was sentenced to terms of imprisonment on each of the four counts, with the sentences structured to be partly cumulative upon the sentence already being served.
  • The additional sentences were ordered to commence after specified dates, with the head sentence expiring on 28 May 2023.
  • The non-parole period was set to expire on 29 November 2021, with the offender to be released to parole in respect of these offences on that date if also released on the existing sentence.
  • On 5 December 2016, DCJ Tupman revoked the non-publication orders in relation to the offender's name and the name of St Stanislaus College, and directed that pseudonyms (F, G, H, and I) be substituted for the complainants' identifiers in any publication of the sentence proceedings.

Key Takeaways

  • Historic sexual offences must be sentenced by reference to the maximum penalty and sentencing framework in force at the time of the offending, not the current legislative regime, as confirmed by authorities including R v Tuala [2015] NSWCCA 8 and R v MJB [2014] NSWCCA 195.

  • A position of religious or pastoral authority, particularly in an institutional boarding school setting, constitutes a significant aggravating feature in sentencing for indecent assault offences, and the exploitation of confessional or counselling contexts amplifies that gravity.

  • Where an offender is already serving a sentence for related offences, the totality principle requires the sentencing court to assess the cumulative effect of all sentences and ensure the overall result is proportionate to the full scope of the criminality, as set out in R v Thomson; R v Houlton [2000] NSWCCA 309.

  • The appropriate ratio between the head sentence and the non-parole period for offences governed by the Probation and Parole Act 1983 (NSW) differs from that under the current Crimes (Sentencing Procedure) Act 1999 (NSW), and care is required in applying the correct statutory regime to each historic count.

  • Guilty pleas, advanced age, and significant ill health were accepted as mitigating factors, though they did not displace the need for sentences that reflected the seriousness of the breach of trust involved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1) and 61E(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(2)(g), 21A(3)(i), 21A(3)(g), 30(2), 44(1), 53A(2)(b)
- Interpretation Act 1987 (NSW), s 30(1)
- Probation and Parole Act 1983 (NSW)
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309
- R v Tuala [2015] NSWCCA 8
- R v MJB [2014] NSWCCA 195
- BJS v R [2013] NSWCCA 123
- R v BJS (Unreported, District Court of NSW, Woods DCJ, 27 September 2013)
- R v Borkowski [2009] NSWCCA 102
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- AJB v Regina [2007] NSWCCA 51
- Bradbery v Regina [2008] NSWCCA 93
- PWB v R [2011] NSWCCA 84
- Kenny v R [2010] NSWCCA 6
- Flynn v R [2010] NSWCCA 171
- Dousha v R [2008] NSWCCA 263
- DF v R [2012] NSWCCA 171
- JM v R [2014] NSWCCA 297
- R v RLP [2009] VSCA 271
- R v Hunter (1984) 36 SASR 101
- R v Moon (2000) 117 A Crim R 487
- R v Pemble [2015] NSWDC 168
- R v Murrin [2008] NSWDC 192