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District Court 29 May 2020

R v Paul Raymond Evans

[2020] NSWDC 253

Sexual offences
CRIME SENTENCING BOYS’ TOWN TEACHER REPEAT OFFENDER

Citation: R v Paul Raymond Evans [2020] NSWDC 253
Court: District Court of New South Wales
Date: 29 May 2020
Judge: Wilson SC DCJ

Background

The offender, a 68-year-old former Catholic priest and teacher, was sentenced for historical child sexual offences committed against a male student at Boys' Town, a residential Catholic school in Engadine, Sydney. Boys' Town educated disadvantaged and marginalised youth, and the offender served there as a dormitory master and teacher between 1986 and 1988. The complainant was 14 years old when he commenced at the school in November 1986.

The offending occurred while the complainant was a resident in the dormitory for which the offender was responsible. The complainant slept in a separate storage room outside the main dormitory, an arrangement the court noted carried an implicit coercive dynamic. The offender had a lengthy history of sexually abusing young males dating back to the 1970s, and had already been in custody since being convicted by a jury of multiple offences in 2008.

The sentence hearing was significantly delayed because the offender gave evidence inconsistent with a Statement of Agreed Facts he had signed in the presence of his lawyer. His counsel ultimately abandoned reliance on his oral evidence. The court noted this conduct reflected poorly on any claim of remorse, and the offender's own counsel was unable to mount a sustainable submission to that effect.

  • What aggregate sentence was appropriate for two charges of homosexual intercourse between a teacher and pupil under s 78N of the Crimes Act 1900 (NSW), a provision no longer in force?
  • How should two additional charges, dealt with on a Form 1, affect the principal sentences?
  • Whether the teacher-pupil relationship, as an element of the offence itself, could also be treated as an aggravating factor under the Crimes (Sentencing Procedure) Act.
  • How prior convictions and the offender's history of similar offending should bear on the sentence.
  • Whether a 25% guilty plea discount was appropriate given the circumstances.
  • What statutory warnings were required under the Crimes (High Risk Offenders) Act 2006.

Decision

The court convicted the offender on two charges under s 78N of the Crimes Act 1900 (NSW), both relating to sexual offences committed against the same complainant during the period 1986 to 1987. Two further charges were addressed on a Form 1 and taken into account to increase the penalty, with the court noting that Form 1 matters heighten the weight given to personal deterrence and the community's entitlement to retribution.

The court declined to treat the abuse of a position of trust or authority as a separate aggravating factor, because the teacher-pupil relationship was already an element of the offences charged. However, the offender's prior convictions, including multiple offences for which he had been sentenced in 2008, were treated as a significant aggravating factor. The court also took into account the complainant's particular vulnerability as a disadvantaged 14-year-old placed in the offender's direct care.

A 25% discount was applied to each sentence to reflect the guilty pleas. The court set indicative sentences of 5 years and 3 months for the first charge (to which the Form 1 attached) and 4 years and 6 months for the second, before arriving at the aggregate orders below. The court also gave the statutory warning required under the Crimes (High Risk Offenders) Act 2006, noting that the Supreme Court holds power to impose an extended supervision order or continuing detention order if the offender poses an unacceptable risk upon release.

Orders Made

  • The offender was convicted of two charges of homosexual intercourse by a teacher with a pupil aged between 10 and 18 years, contrary to s 78N of the Crimes Act 1900 (NSW).
  • An aggregate non-parole period of 4 years was imposed, commencing 4 December 2018, with an aggregate head sentence of 6 years. The earliest parole eligibility date was 3 December 2022.
  • A statutory warning was given under the Crimes (High Risk Offenders) Act 2006 regarding the Supreme Court's power to make an extended supervision order or continuing detention order upon release.
  • The court directed that the report of Dr Matter (dated 16 March 2020) accompany the offender's Warrant of Commitment and be brought to the attention of Justice Health.

Key Takeaways

  • Where a statutory offence already incorporates the teacher-pupil relationship as an element, a sentencing court cannot also treat the abuse of trust or authority as a separate aggravating circumstance, as that would constitute double-counting.
  • A guilty plea discount of 25% remained available even where the offender's conduct during the hearing, including giving evidence inconsistent with agreed facts, significantly complicated and delayed proceedings; however, that conduct was treated as undermining any claim of genuine remorse.
  • The District Court confirmed that Form 1 charges are taken into account by increasing the weight given to personal deterrence and the community's entitlement to retribution, rather than by adding a discrete quantum to the sentence.
  • An offender's prior convictions for similar offending constitute a significant aggravating factor at sentence, even where those convictions have already resulted in separate custodial terms being served.
  • Under the Crimes (High Risk Offenders) Act 2006, a sentencing court is required to warn an offender convicted of serious sex offences that the Supreme Court retains power to impose extended supervision or continuing detention if an unacceptable risk to the community is established at the time of parole eligibility.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1A), 78N
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 1A, 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25AA, 47

Cases:
- Green v R [2018] NSWCCA 146
- Hornhardt v The Queen [2017] NSWCCA 186
- Johnson v The Queen (2004) 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- R v Cattell [2019] NSWCCA 297
- R v Knight (2005) 155 A Crim R 252
- R v MAK (2006) 167 A Crim R 159
- R v Todd [1982] 2 NSWLR 517
- R v Vachalec (1981) 1 NSWLR 351
- Re Attorney General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
- Regina v L (17 June 1996)