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District Court 30 September 2020

R v Wade

[2020] NSWDC 573

Sexual offencesPublic order & justice offences
CRIME CONCEAL SERIOUS INDICTABLE OFFENCE

Citation: R v Wade [2020] NSWDC 573
Court: District Court of New South Wales
Date: 30 September 2020
Judge(s): Adams QC ADCJ

Background

The offender was an elderly Catholic Marist Brother who served as deputy principal, acting principal, and ultimately principal of a Marist Brothers school in Hamilton, NSW between 1969 and 1976. During his time as principal, two other Marist Brothers at the school sexually abused students. On multiple occasions, students made complaints directly to the offender about this conduct.

The charges were not about the offender's failure to act on those complaints when they were first made in the early 1970s. Rather, the prosecution alleged that between April and September 2014, when police were actively investigating the two Brothers and charges had already been laid against them, the offender failed to disclose to police the information he held about the students' earlier complaints. He pleaded guilty to two counts under section 316(1) of the Crimes Act 1900, with additional offences taken into account on two Form 1 schedules.

The offender was over 84 years old at sentencing, in poor health, and had previously been convicted in 2017 of indecent assaults on male students, for which he served a sentence of 18 months with a nine-month non-parole period.

Legal Issues

  • Whether the offender's failure to act on complaints made to him in the 1970s constituted any criminal offence at those earlier times, and how that affected his sentencing
  • How the objective seriousness of the section 316(1) offences should be assessed, given that the relevant non-disclosure occurred in 2014 rather than when complaints were first made
  • What weight to give the offender's subjective circumstances, including his age, health, remorse, character references, and prior convictions
  • Whether a sentence of imprisonment was required, and if so, whether it should be served by way of Intensive Corrections Order

Decision

Issue 1: The timing of criminal liability

The court drew a sharp distinction between the offender's moral failures in the 1970s and his criminal liability in 2014. At the time complaints were first made, the offender could not have committed the common law offence of misprision of felony because there was no evidence he knew, as distinct from suspected, that the Brothers had committed serious offences (at [7]). Section 316 was not inserted into the Crimes Act until 1990, and even under that provision, mere suspicion is insufficient: belief is required (at [10]). The only evidence of the requisite belief came from the offender's own pleas of guilty, which related only to the specified 2014 dates (at [11]).

The court emphasised that this distinction was "of vital, indeed, crucial, importance." The offender had to be sentenced for his criminality as at the dates in the indictment, not for what he morally failed to do decades earlier, however reprehensible that earlier conduct was (at [11]).

Issue 2: Objective seriousness

The court placed the offences towards the lower end of the scale of seriousness. Section 316(1) covers non-disclosure of information about offences carrying up to ten years' imprisonment, and the indecent assaults at issue carry a maximum of five years, placing them in the lower range of offences the provision captures (at [31]). The court also found that the materiality of the offender's non-disclosure in 2014 was limited: the Brothers had already been charged, the concealed information was largely the fact that complaints had been made, and the prosecution did not establish that the offender's knowledge would have been of substantial significance to the investigations or prosecutions (at [32]). No actual adverse consequences of the non-disclosure were established (at [34]).

Issue 3: Subjective circumstances

The court accepted extensive evidence of the offender's poor physical and mental health, including depression, significant mobility limitations, cardiac and renal conditions, and a Transient Ischaemic Attack suffered during his previous incarceration. Expert opinion indicated that further imprisonment would be far more onerous for him than for a typical prisoner, and could result in rapid and terminal health decline (at [38]-[40]). The offender's character references described a man of dedication and genuine contribution to education over decades, though his good character was significantly qualified by his criminal convictions (at [47]).

Issue 4: Remorse and the plea

The court accepted the offender's pleas of guilty as the strongest evidence of remorse, noting that the Crown would have faced serious difficulty proving beyond reasonable doubt that he believed the Brothers had committed sexual assaults, as opposed to merely suspecting it (at [52]). The court was more cautious about other expressions of remorse, noting that the offender's accounts to clinicians and the Probation Officer reflected confusion between the moral failures of the 1970s and the actual criminality charged for 2014 (at [48], [53]).

Issue 5: Sentence

Despite the low objective seriousness and the offender's subjective circumstances, the court found that no penalty other than imprisonment was appropriate, given the need for denunciation and general deterrence, particularly in the context of child protection (at [54]). The offender was sentenced to four months' imprisonment, to be served by way of an Intensive Corrections Order. The court declined to impose additional conditions under section 73A of the Crimes (Sentencing Procedure) Act 1999, finding that the offender's age, health, and the short duration of the sentence constituted exceptional circumstances (at [55]).

Orders Made

  • The offender sentenced to four months' imprisonment commencing 30 September 2020 and ending 29 January 2021
  • Sentence to be served by way of Intensive Corrections Order pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999
  • Standard conditions imposed: the offender must not commit any offence and must submit to supervision by a community corrections officer
  • No additional conditions imposed under section 73A of the Crimes (Sentencing Procedure) Act 1999, the court finding exceptional circumstances based on the offender's age, state of health, and the relatively short term of the sentence

Key Takeaways

  • Under section 316(1) of the Crimes Act 1900, criminal liability for concealing a serious indictable offence requires belief (not mere suspicion) that an offence has been committed. Where earlier conduct fell short of that threshold, a sentencing court must assess the offender's criminality solely by reference to the dates particularised in the charges, not by reference to earlier moral failures (at [10]-[11]).

  • The District Court confirmed that the scale of seriousness for section 316(1) offences must be assessed by reference to the full range of offences the provision captures, meaning that non-disclosure of information about indecent assaults, at the lower end of that range, will generally attract a lower objective assessment of seriousness (at [31]).

  • Materiality of the concealed information is a relevant consideration under section 316(1). Where the substantive offenders have already been charged and the prosecution has not established that the withheld information would have been of substantial significance, this weighs against a higher assessment of seriousness (at [32]).

  • A guilty plea can constitute the strongest available evidence of remorse where the underlying evidence is such that the Crown would have faced serious difficulty proving the requisite mental element at trial (at [52]).

  • Extreme age, significant medical complexity, and the demonstrated onerousness of imprisonment can together constitute exceptional circumstances justifying non-imposition of additional conditions on an Intensive Corrections Order under section 73A of the Crimes (Sentencing Procedure) Act 1999, even where denunciation and general deterrence remain relevant sentencing considerations (at [54]-[55]).

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW)1900
- Crimes Sentencing Procedure Act

Cases
- Not stated