Citation: R v Farrell [2018] NSWDC 327
Court: District Court of New South Wales
Date: 2 November 2018
Judge: Judge S Norrish QC
Background
The offender, a Catholic priest ordained in September 1981, appeared for sentencing on multiple counts of indecent assault and sexual intercourse without consent. The offences were committed between November 1981 and December 1983 in Moree and Narrabri, when the offender worked as a deacon and then priest at a local Catholic church. The victims were primary school-aged altar boys who attended the attached parish school.
The sentencing proceedings before Judge Norrish concerned offences against three victims: DJ (deceased at the time of trial, whose committal evidence was tendered), DW (who gave oral evidence at trial), and MR (in respect of whom the offender had pleaded guilty before a different judge in 2017). The offender contested most charges at trial in March and April 2018, pleading guilty only to one count involving DJ on the first day of that trial.
Critically, this was not the offender's first sentencing. Judge Zahra SC had sentenced the offender on 2 May 2016 for a large number of contemporaneous offences against other altar boys in Moree. The sentencing exercise before Judge Norrish therefore required careful application of totality principles across a pre-existing aggregate sentence.
Legal Issues
- What aggregate sentence was appropriate for the further offences against DJ, DW, and MR, having regard to the totality principle and the pre-existing sentence imposed by Judge Zahra SC in 2016?
- What discount, if any, was warranted for the late and limited guilty pleas?
- Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and balance of sentence under the Crimes (Sentencing Procedure) Act 1999.
- How to structure the commencement date and non-parole period of the new aggregate sentence in light of the existing non-parole period.
Decision
Judge Norrish imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, reflecting the gravity of serial sexual offending by a priest against children entrusted to his care. The offending involved sustained breaches of trust: the victims were young altar boys who looked to the offender as a figure of spiritual authority. The most serious individual conduct, including repeated penile-anal intercourse with an 11-year-old, attracted indicative sentences of seven years for each count.
On the guilty pleas, His Honour allowed only 5% for the single count to which the offender pleaded guilty before him (Count 1 concerning DJ), noting that virtually no utilitarian benefit was achieved given that DJ's evidence had been given 30 years earlier and was simply read to the jury. A 10% discount applied to the five counts concerning MR, entered before a different judge in 2017. No discount applied to the counts contested at trial.
Applying totality, His Honour ordered the new aggregate sentence to commence two years before the expiry of the existing non-parole period, rather than at its expiry. This approach gave practical effect to a finding of special circumstances, which justified a longer parole supervision period given the volume and nature of the offending. Had the new non-parole period commenced only from the expiry of the existing one, the balance of sentence available for parole supervision would have been inadequate relative to the total time to be served.
His Honour also confirmed that the overall sentences imposed were proportional to those handed down by Judge Zahra SC in 2016 for the earlier, contemporaneous offending.
Orders Made
- The offender was convicted of all offences.
- An aggregate sentence of 9 years 6 months imprisonment was fixed, commencing 20 June 2031 and expiring 19 December 2040.
- An aggregate non-parole period of 5 years 6 months was fixed, commencing 20 June 2031 and expiring 19 December 2036.
- Indicative sentences included:
- DJ Count 1 (indecent assault): 1 year 9 months
- DJ Count 2 (sexual intercourse without consent): 6 years
- DJ Count 3 (penile-anal intercourse): 7 years
- DJ Count 5 (digital penetration): 5 years
- DJ Count 6 (further penile-anal intercourse): 7 years
- DW Count 11 (most serious): 7 years 6 months
- MR counts: ranging from 1 year 1 month to 1 year 10 months
Key Takeaways
- Where an offender is subject to a pre-existing aggregate sentence, totality principles require the new sentence to overlap meaningfully with the existing one rather than simply commencing at its expiry. The District Court here commenced the new aggregate sentence two years before the existing non-parole period expired.
- A finding of special circumstances, justifying a proportionally longer parole tail, may have limited practical effect unless the commencement date of the new sentence is structured to create a sufficient balance of sentence after the combined non-parole period.
- Late guilty pleas that deliver little or no genuine utilitarian benefit to the court attract minimal discount. Where a deceased victim's prior committal evidence had already been adduced at trial, a plea on the first day of proceedings warranted only 5%.
- The totality principle operates not only across the counts within a single proceeding but also in relation to sentences imposed in prior, related proceedings for contemporaneous offending.
- Indicative sentences under an aggregate order serve as a transparency mechanism, showing how the court values individual counts even where the controlling figure is the aggregate term.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 53A (aggregate sentences)
- Crimes Act 1900 (NSW)
Cases
- Fisher (1989) 48 A Crim R 442
- Hammoud (2000) 118 A Crim R 66
- Pearce v The Queen (1998) 194 CLR 610
- R v JM [2014] NSWCCA 297
- R v XX (2009) 195 A Crim R 38