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District Court 30 September 2020

R v Wade

[2020] NSWDC 932

Public order & justice offences
CRIME CONCEAL SERIOUS INDICTABLE OFFENCE

Citation: R v Wade [2020] NSWDC 932
Court: District Court of NSW
Date: 30 September 2020
Judge(s): Adams QC ADCJ

Background

The offender, an 84-year-old Catholic Marist Brother, served as deputy principal, acting principal, and ultimately principal of a Marist Brothers school in Hamilton between 1969 and the late 1970s. During that period, two Brothers attached to the school as teachers sexually abused students. Several students made complaints directly to the offender about that conduct at the time it occurred.

The offender was not charged with any failure to act during the 1970s. Rather, the charges arose from his failure, between April and September 2014, to disclose to police information he believed to be true about those sexual assaults. By 2014, police were already investigating and had charged both Brothers in connection with the conduct.

The offender pleaded guilty to two counts on indictment under section 316(1) of the Crimes Act 1900, together with additional offences on a Form 1 (a form that allows other related offences to be taken into account at sentencing without separate conviction). The court proceeded to sentence him on all matters.

Legal Issues

  • Whether the offender bore any criminal liability for failing to report the complaints of sexual abuse when they were originally made to him in the 1970s.
  • How to assess the objective seriousness of a section 316(1) concealment offence where the underlying disclosures had already been provided to police by other means and the substantive offenders had already been charged.
  • What weight to give to the offender's advanced age, serious medical conditions, prior imprisonment, and evidence of remorse in the sentencing exercise.
  • Whether a sentence of imprisonment, served by way of Intensive Corrections Order, was the appropriate penalty.

Decision

Issue 1: Criminal liability and the relevant dates

The court drew a sharp distinction between the offender's moral failures in the 1970s and his criminal liability in 2014. At the time the complaints were originally made, the common law offence of misprision of felony required actual knowledge that a felony had been committed. Because the offender's state of mind at that time amounted only to suspicion, not knowledge or belief, no criminal offence was committed by his silence (at [7]). Section 316(1), inserted into the Crimes Act in 1990, requires only belief (not certainty) that a serious indictable offence has been committed. The only evidence of the requisite belief came from the offender's own guilty pleas, which admitted to that state of mind on and from the dates specified in the 2014 charges (at [8], [11]). His criminality was therefore assessed as at 2014, not as at the time of the original complaints (at [11]).

Issue 2: Objective seriousness

The court placed the offences towards the lower end of objective seriousness for several reasons. The underlying indecent assaults, though serious, sat at the less severe end of offences covered by section 316(1), which extends to offences carrying up to ten years imprisonment (at [31]). By the time of the charged non-disclosures in 2014, both Brothers had already been charged by police, so the concealed information was of limited materiality to investigation, apprehension, or prosecution (at [32], [33]). The prosecution did not establish that the offender's disclosure would have had any substantial impact on the proceedings against either Brother (at [32]). The court acknowledged that the offender's earlier inaction had contributed to terrible consequences for victims, but emphasised he could not be punished for conduct that was not then criminal (at [13]).

Issue 3: Subjective factors and remorse

Medical evidence from a forensic psychiatrist and a psychologist described the offender as suffering from depressive illness, significant anxiety, and multiple serious physical conditions including cardiac problems, osteoarthritis, recurrent kidney stones, and a transient ischaemic attack suffered during a previous period in custody. Both experts considered further imprisonment would be far more onerous for him than for an ordinary prisoner and that he was unfit for further incarceration (at [38], [39], [40]). The court accepted that the guilty pleas represented the strongest evidence of remorse, noting that the Crown would have found it very difficult to prove beyond reasonable doubt that the offender held the requisite belief at the time specified in the charges (at [52]). The court was prepared to accept that genuine remorse existed, though it found some of the explanations offered for the non-disclosure unconvincing (at [53]).

Issue 4: Sentence imposed

Despite the low objective seriousness and the offender's significant subjective circumstances, the court found that the need for denunciation and general deterrence, particularly in the context of child protection, required a custodial sentence (at [54]). A term of four months imprisonment was imposed, to be served by way of an Intensive Corrections Order under section 7(1) of the Crimes (Sentencing Procedure) Act 1999. A 15 percent discount for the guilty plea was factored in (at [30]). The court found that the offender's age, health, and the short duration of the sentence constituted exceptional circumstances justifying the non-imposition of additional conditions beyond the standard ones of not committing any offence and submitting to supervision by a community corrections officer.

Orders Made

  • The offender was sentenced to four months imprisonment commencing 30 September 2020 and ending 29 January 2021.
  • The sentence was ordered to be served by way of an Intensive Corrections Order pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard conditions applied: the offender must not commit any offence and must submit to supervision by a community corrections officer.
  • No additional conditions were imposed, the court having found the offender's age, state of health, and the short sentence constituted exceptional circumstances.

Key Takeaways

  • Under section 316(1) of the Crimes Act 1900, criminal liability for concealing a serious indictable offence is assessed as at the date the belief was held and the failure to disclose occurred, not as at any earlier date when the relevant information was first received (at [11]).

  • A person who merely suspected, rather than believed, that a serious offence had been committed at the time complaints were made to them did not commit an offence under the common law of misprision of felony, and cannot be sentenced as though they had (at [7]).

  • In assessing the objective seriousness of a section 316(1) concealment offence, the materiality of the concealed information to the actual investigation and prosecution is a significant factor. Where the substantive offenders have already been charged and the information would have been of only limited probative value, this reduces the gravity of the concealment (at [32]).

  • The District Court affirmed that denunciation and general deterrence retain a role in sentencing for concealment of child sexual abuse offences even where objective seriousness is low, making a non-custodial alternative to imprisonment inappropriate (at [54]).

  • Severe and complex medical conditions in an elderly offender, particularly where prior imprisonment caused identifiable harm including a transient ischaemic attack, are capable of constituting exceptional circumstances that justify not imposing additional conditions on an Intensive Corrections Order.

Legislation and Cases Referenced

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

Cases
- Not stated