Citation: R v RH [2024] NSWDC 379
Court: District Court of New South Wales
Date: 16 August 2024
Judge: Coleman SC DCJ
Background
The offender, RH, was a former Catholic priest who committed multiple acts of indecent assault against two young girls in the 1970s. The offending occurred while he served as an assistant priest at two Sydney parishes, where his role gave him close access to the victims and their families. The victims were aged between approximately 9 and 14 at the time of the offending.
RH was sentenced on one principal offence of indecent assault of a female under 16 years (under s 76 of the Crimes Act 1900 as it then stood), carrying a maximum penalty of 6 years imprisonment. Three further offences of the same type were attached on a Form 1, meaning they were taken into account on sentence without separate convictions being recorded.
RH had previously been sentenced by another judge for separate but related offending. He had served a period of imprisonment as a result of that earlier sentencing. The question before Coleman SC DCJ was how to sentence him for this additional criminality, having regard to his age, health, the significant delay in prosecution, and the time already served in custody.
Legal Issues
- What was the objective seriousness of the offending, and where did it fall within the range for s 76 offences?
- What statutory aggravating factors applied, particularly the abuse of trust by a person in authority over children?
- How should the court apply the principles of totality and proportionality where the offender had already served custody for related offending?
- Whether the threshold for imposing a sentence of imprisonment (under s 5 of the Crimes (Sentencing Procedure) Act 1999) was crossed, or whether a Community Corrections Order (CCO) was more appropriate.
- What weight should be given to the offender's advanced age and health in determining the appropriate sentence?
- How should the court treat prosecutorial delay in the sentencing exercise?
Decision
Objective seriousness: Coleman SC DCJ assessed the principal offence (Sequence 2) as being at the serious end of the range for s 76 offending. The conduct involved digital penetration of the victim's vagina, which the judge characterised as among the most serious conduct caught by the section. The defence submissions identifying mitigating features, such as absence of force, no physical harm, and no planning, were largely accepted as factually accurate but found not to substantially reduce the seriousness of the offending. The gross abuse of trust by a priest who had cultivated the victims' confidence and accessed them through their families was identified as a significant aggravating factor.
Totality and delay: The judge gave substantial weight to the principle of totality. RH had already been sentenced for related offending and had served a period of imprisonment. Sentencing him again for this additional criminality, without accounting for what had already been served, risked producing a disproportionate overall outcome. The significant delay between the offending in the 1970s and the prosecution in 2023 was also a relevant consideration, not to diminish the harm caused to the victims, but because delay affects the purposes served by general deterrence and the relationship between the sentence and the circumstances of the offending.
Age and health: RH was 79 years old at the time of sentencing. The judge found that his advanced age and health issues would make any period of custody significantly more onerous than it would be for a younger and healthier offender. These matters weighed against imposing further imprisonment, particularly given the time already served.
Sentence: Weighing all of these factors together, Coleman SC DCJ found that the threshold for imposing a term of imprisonment under s 5 of the Crimes (Sentencing Procedure) Act had not been crossed. A Community Corrections Order of 2 years, with a supervision condition, was imposed. The judge considered this outcome, taken together with the earlier sentence and time served, adequately reflected the totality of RH's criminality. The judge expressly acknowledged the harm caused to both victims and noted that the delays in prosecution were not their fault.
Orders Made
- RH convicted of one offence of indecent assault of a female under 16 years (Sequence 2).
- Community Corrections Order imposed for a period of 2 years commencing 16 August 2024, under s 8 of the Crimes (Sentencing Procedure) Act 1999.
- Standard conditions applied: no further offending; must appear before the court if called upon.
- Additional condition: supervision by the Office of Community Corrections for such period as that service deems necessary.
- Offender directed to attend the court registry and report to Community Corrections at Parramatta by 4:00 pm on 21 August 2024.
Key Takeaways
- The District Court confirmed that, in sentencing for historical sexual offences against children, the court must apply contemporary sentencing practices and must have regard to the trauma of child sexual abuse as understood at the time of sentencing, pursuant to s 25AA of the Crimes (Sentencing Procedure) Act 1999.
- Digital penetration of a child's vagina was characterised as one of the most serious forms of conduct falling within the broad scope of s 76 of the Crimes Act 1900 as it stood at the time of offending.
- A gross abuse of trust by a person in authority, such as a priest with cultivated access to child victims and their families, constitutes a significant aggravating factor even where no explicit threats or coercion accompanied the offending.
- Where an offender has already served a term of imprisonment for related offending, the principles of totality and proportionality require the sentencing court to assess any additional sentence in light of the overall criminality already punished, particularly where prosecution delay is significant.
- Advanced age and health conditions that would make custody especially onerous are relevant subjective considerations capable of affecting both the type and weight of sentence imposed, including whether the s 5 imprisonment threshold is crossed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8, 21A(2)(eb), 21A(2)(k), 21A(3)(k), 21A(5A), 21B, 25AA, 25D
Cases:
- R v Catell [2019] NSWCCA 297
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- Richards v R [2023] NSWCCA 107
- R v Obbens [2022] NSWCCA 109