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District Court 18 December 2017

R v Slattery

[2017] NSWDC 373

Sexual offences
CRIMINAL LAW SENTENCE NO PRIOR RECORDED CONVICTIONS REMORSE ESTABLISHED LOW LIKELIHOOD OF REOFFENDING EXCELLENT PROSPECTS OF REHABILITATION

Citation: R v Slattery [2017] NSWDC 373
Court: District Court of New South Wales
Date: 18 December 2017
Judge: Hatzistergos DCJ

Background

The offender, a former Marist Brother and founding principal of a Catholic primary school, pleaded guilty to four counts of indecent assault against children under 16 years of age. The offences were committed between 1989 and 1992 against two brothers, aged 8 to 10 at the time, whose father had left the family home and who had come to rely on the offender as a father figure. Two additional offences were placed on a Form 1 to be taken into account on sentence (meaning they were acknowledged by the court without separate conviction, but added to the overall picture of criminality).

The offending involved the offender using his position of authority and trust to gain access to the victims. He took them on overnight trips, stayed in close quarters with them, and committed acts of indecency in circumstances where he had assumed a quasi-parental role. The conduct included touching and drying one victim's genitals and buttocks, and entering the bathroom while the other victim was naked and rubbing his body with a towel.

By the time of sentencing in December 2017, the offences were between 25 and 28 years old. The offender had no prior convictions and had not reoffended since the conduct occurred.

  • What weight should be given to delay of approximately 25 to 28 years between the offending and sentencing, particularly in relation to general deterrence?
  • How should the court approach the fact that one offence carried a maximum penalty that would have allowed it to be dealt with in the Local Court?
  • Whether the offender's remorse was genuine and established on the evidence.
  • Whether the offender's prospects of rehabilitation were such as to warrant a finding of special circumstances (which allows the court to adjust the balance between non-parole period and the total sentence).
  • How to apply the totality principle and aggregate sentencing across four counts with related Form 1 matters.

Decision

Hatzistergos DCJ found that the offending was serious, involving a gross breach of trust by a person in a position of authority over young and vulnerable children who had no father figure in their lives. The offender had deliberately cultivated the family's trust and used it to access the victims. Each offence was considered separately, though the court acknowledged the need to avoid double-counting given the overlapping factual circumstances.

The court accepted that the offender's remorse was genuine and established, supported by evidence of his conduct since the offending came to light. The offender's prospects of rehabilitation were assessed as excellent, and a low likelihood of reoffending was also found. These findings, together with his age (he was 69 at the time of sentence) and the significant delay in the matter coming before the courts, supported a finding of special circumstances under the sentencing legislation. Special circumstances permit the court to reduce the non-parole period relative to the total sentence below the standard statutory ratio.

On the question of general deterrence, the court considered whether the passage of 25 to 28 years since the offending diminished the weight to be given to that sentencing objective. The court addressed this as a relevant consideration without treating the delay as eliminating deterrence entirely as a factor. The court also considered the fact that one offence could have been dealt with summarily in the Local Court, noting this had some bearing on the exercise of sentencing discretion.

Applying the totality principle, which requires the court to ensure an aggregate sentence is proportionate to the overall criminality rather than simply cumulative, the court imposed a single aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • The offender was convicted of each count.
  • An aggregate sentence of 3 years and 10 months imprisonment was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Non-parole period: 2 years and 4 months, commencing 18 December 2017 and expiring 17 April 2020.
  • Additional term (parole eligibility period): 1 year and 6 months, from 18 April 2020 to 17 October 2020.

Key Takeaways

  • Significant delay between historical child sexual offending and sentencing is a relevant consideration, particularly in assessing the weight to be given to general deterrence, though it does not eliminate that sentencing objective.
  • A position of authority or trust over child victims, deliberately cultivated by an offender, remains a serious aggravating factor even where the offending is historical in nature.
  • Genuine remorse, a low likelihood of reoffending, and excellent prospects of rehabilitation can each contribute to a finding of special circumstances, permitting a departure from the standard ratio between non-parole period and total sentence.
  • The fact that an offence could have been dealt with in the Local Court (because it falls within the summary jurisdiction) has some bearing on the sentencing discretion exercised in the District Court.
  • Under the totality principle, an aggregate sentence must reflect overall criminality proportionately, and the court applied section 53A of the Crimes (Sentencing Procedure) Act 1999 to impose a single combined sentence across the four counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E, 61M, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22, 33, 44, 53A

Cases:
- AK v R [2016] NSWCCA 238
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Bains v R [2016] NSWCCA 132
- Denham v R [2016] NSWCCA 309
- Featherstone v R [2008] NSWCCA 71
- MC v R [2017] NSWCCA 316
- MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
- MPB v R [2013] NSWCCA 213
- Peiris v R [2014] NSWCCA 58
- PWB v R [2011] NSWCCA 84
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v Baxter (Court of Criminal Appeal, 26 May 1994, unreported)
- R v Borkowski [2009] NSWCCA 182
- R v Brian Joseph Spillane [2016] NSWDC 337
- R v DCM (Court of Criminal Appeal, 26 October 1993, unreported)
- R v Hall [2017] NSWCCA 313
- R v Moon [2000] NSWCCA 534
- R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
- R v Staupe [2015] NSWCCA 175