Citation: R v Brian Joseph Spillane [2017] NSWDC 109
Court: District Court of New South Wales
Date: 16 February 2017
Judge: DCJ Tupman
Background
The offender was an ordained Catholic priest who worked as a teacher and later chaplain at St Stanislaus' College, a private Catholic boarding school in Bathurst. He faced sentencing following two consecutive jury trials, during which he was convicted on 16 counts of child sexual assault arising from conduct against nine separate complainants over a period spanning from 1974 to 1990.
All nine complainants were male students at the college, each under 16 at the time of the offending. The majority were boarders, many from regional New South Wales, who had come to the school seeking educational opportunities far from home. The offender exploited his positions of authority and trust as teacher and chaplain to gain access to vulnerable boys, in several instances targeting those who were homesick or otherwise distressed.
The offences spanned multiple decades and were charged under different provisions of the Crimes Act 1900 as it applied at the time of each offence, reflecting successive legislative changes to child sexual assault laws from the 1970s through to the late 1980s.
Legal Issues
- What aggregate sentence was appropriate for 16 historic child sexual assault offences committed against nine complainants over approximately 16 years?
- How should the sentencing court approach offences charged under different statutory provisions, reflecting the law as it stood at the time of each offence?
- What was the appropriate structure for the aggregate sentence, including non-parole period and commencement date, having regard to a sentence already being served?
- How should the most serious individual offence (buggery, charged separately) be treated relative to the remaining 15 offences?
Decision
DCJ Tupman convicted the offender on all 16 counts and imposed an aggregate sentence pursuant to section 53A of the Crimes (Sentencing Procedure) Act 1999. The offences were grouped for sentencing purposes: 15 counts (comprising the indecent assault and acts of indecency charges across both indictments) attracted a single aggregate term, while the buggery count, described by the court as "by far the most serious of all the counts," was sentenced separately with a consecutive non-parole period.
The individual offences ranged from indecent assault by kissing in a sexualised context, to masturbation of victims by the offender, to an incident in which one complainant was subjected to a purported "exorcism" before being sexually assaulted. The buggery offence occurred in 1978 and, under the terminology of the day, would now be described as sexual intercourse with a child under 16. The court noted the statutory provisions applicable to each offence varied because of legislative changes across the relevant period.
DCJ Tupman structured the commencement date of the sentences to take account of a sentence the offender was already serving, with the new terms commencing on 28 November 2017. This approach extended the effective non-parole period of that existing sentence by five years, resulting in an overall custodial structure spanning from November 2017 to November 2030.
The court revoked certain non-publication orders, including those relating to two complainants who had each consented to being publicly identified.
Orders Made
- The offender was convicted on all 16 counts across both indictments.
- For 15 counts (counts 1, 2, 3, 4, and 6 of the first indictment; counts 1, 2, 4, 5, 6, 7, 9, 10, 11, and 12 of the second indictment): aggregate sentence of 10 years' imprisonment, commencing 28 November 2017 and expiring 27 November 2027; non-parole period of 7 years, expiring 27 November 2024; parole period of 3 years thereafter to 27 November 2027.
- For the buggery count (count 8, second indictment): sentence of 8 years' imprisonment, commencing 28 November 2020 and expiring 27 November 2030; non-parole period of 4 years commencing 28 November 2022 and expiring 27 November 2026; parole period of 4 years to 27 November 2030.
- Outstanding counts relating to other complainants stood over for mention on 17 March 2017; bail refused.
- Non-publication and pseudonym orders revoked in relation to the two complainants who consented to identification.
Key Takeaways
- The District Court applied section 53A of the Crimes (Sentencing Procedure) Act 1999 to impose a single aggregate custodial term across 15 of the 16 counts, while sentencing the most serious offence (buggery) separately with a consecutive non-parole period.
- Historic child sexual assault charges must be assessed under the statutory provisions in force at the time each offence was committed, which can result in different maximum penalties and elements applying across counts in the same proceedings.
- Where an offender is already serving a sentence, the commencement date of new terms may be set to ensure the new non-parole period does not simply overlap with the existing one, thereby extending the period before parole eligibility arises.
- Non-publication and pseudonym orders protecting complainant identity may be revoked where the complainant has given informed consent to identification, though permanent protections against identification of other complainants remain in place.
- Aggravating features included the offender's repeated exploitation of a position of religious and institutional authority, the vulnerability of the victims (many of whom were homesick, isolated boarders far from family), and the multiplicity of victims spanning nearly two decades.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61E(1A), 79, 81, 81A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases:
- BJS v R [2013] NSWCCA 123
- Denham v R [2016] NSWCCA 309