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District Court 10 December 2021

R v Caruana

[2021] NSWDC 831

Sexual offences

Citation: R v Caruana [2021] NSWDC 831
Court: District Court of New South Wales
Date: 10 December 2021
Judge: Tupman DCJ

Background

The offender, a now 80-year-old former Catholic priest and boarding house master, was sentenced following a seven-week jury trial. He was convicted on 26 counts of historical child sexual offences committed between 1982 and 1989 against 12 boys aged between 10 and 14, all of whom were students at Chevalier College at Burradoo (near Bowral). The offender held positions of particular authority over the victims, including as a teacher, house master, band master, and rugby coach.

The offending encompassed indecent assault and unlawful sexual (homosexual) intercourse. All counts were historical, meaning they were between 32 and 39 years old by the time of sentencing. Ten victim impact statements were before the Court, and the judge noted the victims had suffered a range of serious emotional consequences.

Earlier complaints had been made in 1989, leading to prior charges that were variously withdrawn, dismissed at committal, or resulted in acquittals. The current proceedings arose from a fresh investigation. At trial, the jury returned guilty verdicts on 26 of the remaining 27 counts, with a directed not-guilty verdict on two counts and a hung jury on one further count.

  • Whether current sentencing patterns and practices applied to historical child sex offences, given the relatively recent enactment of s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How delay of 32 to 39 years between offending and sentencing should affect the sentence, including whether the "sword of Damocles" principle reduced the weight given to delay
  • What weight to give to the offender's special position of trust as a priest and educator over children in his care, including whether that trust went beyond the elements already constituting the offences charged
  • How the offender's age (80), deteriorating health, first time in custody, and very low risk of reoffending should affect the sentence, including whether special circumstances justified a longer than usual parole period
  • How an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 should be structured across 26 counts to reflect totality principles

Decision

Sentencing methodology. Tupman DCJ applied s 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires courts to sentence for child sexual assault offences in accordance with sentencing patterns at the time of sentencing, not at the time of the offence. The Court noted that current sentencing practices for this type of offending, particularly where perpetrated by someone in authority, would virtually never result in a non-custodial penalty.

Delay. The Court accepted that delay can reduce an otherwise appropriate sentence on two bases: fairness to the offender and evidence of rehabilitation in the intervening period. However, on the first basis, the Court found the "sword of Damocles" principle did not apply here. The offender had not spent the intervening decades in anxious anticipation of prosecution. To the contrary, earlier charges had been dismissed or resulted in acquittals, and compensation payouts to some victims by the religious order had not been accompanied by criminal proceedings. There was no evidence the offender genuinely believed he would eventually be held to criminal account.

Breach of trust. The Court found the offender's position as a priest, teacher, and house master at a boarding school created a duty of care to these boys that went beyond the elements of the offences already charged. Many victims were boarders away from home, often for the first time, and were placed in the offender's direct care. That elevated duty was treated as a circumstance of aggravation.

Subjective factors and aggregate sentence. The Court acknowledged the offender's advanced age, absence of prior criminal record, deteriorating health, and very low likelihood of reoffending. It found special circumstances, noting this would effectively be the final chapter of the offender's life spent in custody, that conditions in custody would be more onerous given his age, health, and the nature of the offending, and that he was a first-time prisoner. An aggregate sentence under s 53A was imposed, structured with a longer-than-standard ratio of parole to non-parole period to reflect those circumstances.

Orders Made

  • The offender was convicted on all 26 counts.
  • An aggregate sentence of 15 years imprisonment was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period: 10 years, commencing 14 July 2021 and expiring 13 July 2031.
  • Parole period: 5 years, commencing 14 July 2031 and expiring 13 July 2036.
  • Indicative sentences were set for each individual count, ranging from 12 months to 4 years.
  • Two offences on the s 166 Certificate (sequences 22 and 23) were dismissed.

Key Takeaways

  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires courts to apply current sentencing patterns to historical child sexual assault offences, even where the maximum penalties remain those applicable at the time of the offence. This legislative change significantly affects the starting point for historical matters.

  • The District Court drew a careful distinction between the two bases on which delay may reduce a sentence. Where an offender has not genuinely lived under the expectation of future prosecution, the "sword of Damocles" rationale for leniency does not apply, even when the delay is substantial.

  • A position of trust held by a priest and boarding school educator over children in his care can constitute an aggravating circumstance going beyond the authority-based elements already built into the statutory offences charged.

  • Special circumstances justifying a departure from the standard non-parole ratio can include an offender's advanced age, first time in custody, deteriorating health, and the practical reality that the custodial term will represent the end of the offender's life.

  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence can be structured to reflect totality principles across a large number of counts without imposing what would otherwise be a crushing combined sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61E(1), 61E(1A), 66C(4), 78N (repealed), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 21A(2)(g), 25AA, 53A

Cases
- R v Blanco (1999) 106 A Crim R 303