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District Court 14 May 2021

R v Jewell

[2021] NSWDC 409

Sexual offences
CRIME SENTENCE INDECENT ASSAULT HISTORICAL OFFENCES

Citation: R v Jewell [2021] NSWDC 409
Court: District Court of New South Wales
Date: 14 May 2021
Judge: Bourke SC DCJ

Background

The offender was a member of the Marist Brothers Catholic religious order who taught at various Catholic schools from 1959 to 1970, including at Marist Brothers, Eastwood, where he was known as Brother Dacian. He faced sentencing on 19 counts of indecent assault committed between approximately February 1967 and December 1969, when his victims were primary school-aged boys, predominantly from his Year 5 class.

The offending involved repeated acts of fondling of victims' genitals and buttocks, carried out in the classroom, in a building within the school grounds known as "the ferry," and during swimming squad activities. The offender exploited his position of authority as both a classroom teacher and sports coach to gain access to the boys. Several victims did not disclose the abuse for decades, with some reporting to police only after 2012 and one victim's complaint ultimately reaching the Royal Commission into Institutional Responses to Child Sexual Abuse.

The offender pleaded guilty to all 19 counts, although the timing of the pleas varied. Counts 1 to 14 were the subject of early guilty pleas, while counts 15 to 19 were entered approximately two years after committal and a few months before a scheduled trial.

  • What discount should apply for each group of guilty pleas, given the different timing of those pleas and the inapplicability of the statutory discount provisions in s 25D of the Crimes (Sentencing Procedure) Act 1999?
  • What indicative sentence was appropriate for each individual count, having regard to the nature and circumstances of each offence and the applicable maximum penalty of five years' imprisonment?
  • What aggregate head sentence and non-parole period were appropriate, applying the totality principle to avoid an unduly crushing sentence?
  • Whether special circumstances existed to justify departing from the standard ratio between head sentence and non-parole period.

Decision

His Honour applied a 25% discount for the utilitarian value of the early guilty pleas on counts 1 to 14, and a 10% discount on counts 15 to 19, reflecting the significantly later timing of those pleas. The statutory provisions of s 25D of the Crimes (Sentencing Procedure) Act 1999 did not apply, and the discounts were determined by the exercise of judicial discretion in accordance with general sentencing authority. The court also took into account the fitness issue raised by defence at an early stage of the proceedings.

After calculating indicative sentences for each count individually (ranging from six months to 22 months after the relevant discount), his Honour applied the totality principle. This principle requires a court to ensure that the overall sentence imposed does not become crushing or overwhelming when multiple offences are sentenced together. The aggregate sentence imposed was accordingly less than the cumulative total of the individual indicative sentences.

His Honour found that special circumstances existed to justify a departure from the ordinary ratio between the head sentence and the non-parole period. The offender's first time in custody, combined with his age and significant medical issues, supported a longer-than-usual parole period to assist with supervision and reintegration. The court also recommended that the offender be given urgent priority access to Justice Health services upon processing, given his medical needs.

Orders Made

  • Aggregate head sentence of seven years' imprisonment, commencing 14 May 2021 and expiring 13 May 2028.
  • Non-parole period of four years, expiring 13 May 2025.
  • Recommendation that the offender be given urgent priority access to Justice Health services upon processing.

Key Takeaways

  • The District Court applied different guilty plea discounts to different groups of counts within the same sentencing exercise, reflecting the materially different timing of pleas entered at an early stage versus those entered shortly before trial.
  • Where s 25D of the Crimes (Sentencing Procedure) Act 1999 does not apply, the discount for a guilty plea is determined by judicial discretion guided by general sentencing authority rather than by statutory formula.
  • A finding of special circumstances to adjust the standard head sentence to non-parole period ratio was supported by the combination of the offender's age, serious health issues, and the fact that he was entering custody for the first time.
  • The totality principle operated to reduce the aggregate sentence significantly below the cumulative total of the indicative individual sentences, with the court's task being to impose a sentence that was just and proportionate without being overwhelming.
  • Victim names in proceedings of this kind are subject to non-publication requirements, and suppression arrangements were put in place before the remarks were published through the court's online portal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 81 (now repealed) — indecent assault
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D

Cases
- Bugmy v R [2013] 302 ALR 192
- Chamseddine v R [2017] NSWCCA 176
- Culbert v R [2021] NSWCCA 38
- O'Sullivan v R [2019] NSWCCA 261
- R v MJR (2002) 54 A Crim R 368
- R v Nelson [2016] NSWCCA 130
- R v PGM (2008) 187 A Crim R 152
- R v Tuala [2015] NSWCCA 8