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District Court 23 February 2022

R v Obbens

[2022] NSWDC 47

Sexual offences

Citation: R v Obbens [2022] NSWDC 47
Court: District Court of New South Wales
Date: 23 February 2022
Judge: M L Williams SC DCJ

Background

The offender, a Christian brother aged 76 at sentencing, faced sentence for historical child sexual offences committed in 1987 and 1989 against young male boarders at a school where he served as a dormitory master. The principal charge involved indecent assault of a person under 16 years of age under authority, an offence under the former s 61E(1)(A) of the Crimes Act 1900 (since repealed), carrying a maximum penalty of six years imprisonment with no standard non-parole period. A further count under the same provision was to be taken into account on a Form 1 basis.

The offender had previously been sentenced by Frearson DCJ in October 2016 for related offending from the same period, receiving a three-year sentence with an 18-month non-parole period. The current proceedings arose after the victim, prompted by a medical issue in 2020 that triggered memories of the assault, disclosed the offending to his wife and reported it to police.

The central sentencing question was how to deal with the current offending in light of that existing sentence, given that all offending could and arguably should have been sentenced together in 2016.

  • Whether s 25AA of the Crimes (Sentencing Procedure) Act 1999 applied, requiring sentencing in accordance with current sentencing patterns and practices rather than those at the time of the offence
  • How the totality principle should operate where the current offending arose from the same period as offending already the subject of a completed or partially served sentence
  • Whether the objective and subjective circumstances of the offending warranted any additional sentence beyond what Frearson DCJ had already imposed
  • What weight to give mitigating factors including the guilty plea (attracting a 25% discount), the offender's age, health, rehabilitation, remorse, and low likelihood of reoffending

Decision

The court applied s 25AA of the Crimes (Sentencing Procedure) Act 1999, which mandates that offenders sentenced for child sexual offences are to be dealt with according to current sentencing patterns and practices, and that courts must have regard to the trauma of sexual abuse as currently understood. Following the approach set out by Price J in R v Cattell [2019] NSWCCA 297, the court worked through the required sentencing steps, including identifying objective gravity, applying current sentencing patterns (to the limited extent available from statistics), and considering aggravating and mitigating factors.

The court then turned to the totality principle. It asked the question posed in Cattell: what would the total effective sentence have been had all of the offender's offending been sentenced together in 2016? The court accepted the Crown's submission that this was the correct framing of the exercise, noting that the offending occurred across a discrete period in 1987 and 1989 rather than representing continuous or escalating criminality over many years.

After weighing all factors, the court concluded that no greater sentence would have been imposed in 2016 had all matters been dealt with together. The offender had already served the earlier sentence, and imposing additional imprisonment would produce a combined outcome exceeding what totality required. Significant mitigating factors supported this conclusion: a 25% guilty plea discount, genuine remorse, evidence of rehabilitation and good character since the offending, advanced age, health concerns, and a low risk of reoffending, as assessed by Brother Whelan.

The court expressly stated that the offender was sentenced in accordance with s 25AA(1) and that the court had regard to the trauma of sexual abuse on the child as understood at the time of sentencing, as required.

Orders Made

  • The offender was convicted of the principal offence.
  • Taking into account the 25% guilty plea discount and the Form 1 offence, the court imposed a community correction order for a period of 18 months commencing 23 February 2022.
  • Standard conditions applied: no further offending and an obligation to appear before the court if called upon.

Key Takeaways

  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires courts sentencing for historical child sexual offences to apply current sentencing patterns and practices, and to have regard to the trauma of sexual abuse as now understood, regardless of when the offence occurred.
  • The structured approach from R v Cattell [2019] NSWCCA 297 governs the sentencing of "old child sexual offences" under s 25AA, requiring express statements that the section has been applied and that trauma has been considered.
  • Where an offender has already been sentenced for related offending from the same period, the totality principle requires a court to ask what the combined effective sentence would have been had all matters been dealt with together, and to ensure the aggregate outcome does not exceed that notional figure.
  • A distinction exists between discrete historical offending over a limited period and sustained, continuous offending over years: the totality principle carries greater weight in the former scenario and care must be taken not to render it meaningless in the latter.
  • Significant subjective mitigating factors, including guilty plea discounts, demonstrated rehabilitation, advanced age, and low reoffending risk, can combine with the totality principle to produce a non-custodial outcome even for serious historical child sexual offences.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 8(1), 21A, 25AA, 25D, 44
- Crimes Act 1900 (NSW), former s 61E(1)(A); s 61EA

Cases
- R v Cattell [2019] NSWCCA 297
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Porter v The Queen [2019] NSWCCA 117
- Pearce v The Queen (1998) 194 CLR 610
- Hornhardt v The Queen [2017] NSWCCA 186
- Magnuson v R [2013] NSWCCA 50
- Ryan v The Queen (2001) 206 CLR 267
- Bidgood v The Queen [2016] NSWCCA 138