New South Wales District Court CITATION: R v Murrin [2008] NSWDC 29 JUDGMENT DATE: 10 March 2008 JURISDICTION: Criminal JUDGMENT OF: Murrell SC DCJ DECISION: See paragraph [40] CATCHWORDS: Indecent assaults by teaching brother - old offences - limited moral culpability - demonstrated rehabilitation LEGISLATION CITED: s.81 Crimes Act 1900 PARTIES: Regina Ross Francis Murrin FILE NUMBER(S): 07/11/0845 SOLICITORS: Mr J Nathan (Crown) Mr G Walsh (Defence) JUDGMENT 1 In 1974, when the offender was a trainee brother and junior teacher responsible for a Year 5 class at the Marist Brothers Primary School, Daceyville, he indecently assaulted 8 pupils in his class. 2 In 2007, the offender was contacted in Rome, where he was working for the Catholic Church as a translator. He returned to Australia voluntarily. 3 The offender pleaded guilty to 17 offences of indecent assault contrary to s. 81 of the Crimes Act 1900. 4 Section 81 carries a maximum available penalty of five years' imprisonment. It encompasses a wide range of conduct, including serious sexual assaults against boys falling short of buggery. In 1984, the provision was repealed. Facts 5 (1) Victim A. In the first week of school, the offender asked the victim to stay back after school. He directed the victim to sit on his lap. He rubbed the victim's groin. He stopped when M said that he did not like it. (2) Victim B. In the first month of school, the offender called the victim to sit on his lap in front of the class. He pulled out the victim's shirt and rubbed the victim's chest, back and stomach. He placed his hand inside the victim's shorts and rubbed the victim's leg, but as the shorts were tight, he could not fully insert his hand into the shorts. (3) Victim B. The offender was supervising victims B and E on detention. He called B to one side of the classroom and fondled his penis outside the pants until E created a disturbance that required his attention. (4) Victim C. On a religious retreat, when the victim was in bed early in the morning, the offender reached his hand under the blanket and touched the victim's stomach for about 10 seconds, until C objected. (5) Victim D. On the religious retreat, when D had finished showering and was alone and wrapped in a towel, the offender accompanied him back to his room. The offender placed his hand under the towel and attempted to loosen it. He placed his hand on victim's buttocks and felt around the victim's anus. (6) Victim D. In about February, 1974, when pupils were filing into class, the offender placed his hand inside the victim's underpants and squeezed his buttocks. (7) Victim D. In February 1974, when the victim was filing from class with other pupils, the offender placed his hand inside the victim's underpants and rested his hand on the victim's buttocks for about 30 seconds. The incident ceased when the pupils reached their destination, the library. (8) Victim E. On the same occasion and immediately before assaulting D, the offender placed his hand down E's shorts and moved it around on E's bottom. The offender's conduct was witnessed by D, who was in line behind E. (9) Victim D. In about May, 1974, on a weekend, the victim was assisting with work at the school. He was helping the offender in the library. The offender took him to another room, grabbed him from behind and pinned him to the floor. The offender pulled down the victim's pants to around the victim's hips in an apparent attempt to remove them. The accused tried to kiss D. D resisted. The offence ceased when the principal came to the room. (10) Victim C. About two weeks after the commencement of the school year, the offender sat the victim on his lap in front of the class. The offender placed his hand under the victim's shirt and rubbed the victim's nipples. (11) Victim C. Continuing the conduct the subject of offence 10, the offender placed his hand inside the victim's shorts and rubbed the victim's buttocks and groin, in the general area of the penis. (12) Victim F. The offender placed his hand under the victim's shirt and touched his back. The offender then placed his hand inside the victim's underpants and touched both buttocks. (13) Victim G. When the victim approached the offender's desk at the front of the class, the offender pulled the victim closer and began to rub the victim's leg on top of his shorts. The offender pulled the victim onto his lap and continued to pat the victim's leg. (14) Victim G. The offender told the victim to sit on his leg. The offender placed his hand inside the victim's underpants and touched his buttocks. The incident ended when another student approached the offender. (15) Victim H. Between March and May, 1974, the victim asked a question in class. The offender directed the victim to approach his desk. The offender grabbed the victim and pulled him closer. The offender placed his hand in the victim's groin area and rubbed the area for two or three minutes while he answered the question. (16) Victim H. On another occasion, when H asked a question, the offender directed H to approach his desk. As the victim bent down to hear the answer, the offender touched the victim's thigh//buttock area. The offender placed his hand inside the victim's shorts and squeezed the victim's buttock. (17) Victim E. When the class was in the school library watching a movie, the offender sat the victim on his lap, between his legs. The offender placed his hand down the front of the victim's pants. 6 At the time of the offences, the victims were aged between 9 and 11 years. Generally, the offender's misconduct was open. In relation to all eight victims, the offender concedes that the subject offences were not isolated. He indecently assaulted the victims on other occasions. 7 The offender was responsible for the Year 5 class during most, but not all of the 1974 school year. In 1974, the offender was 18 or 19 years old. He was a big man, possibly 6 feet in height. 8 One victim complained to his parents, but he was disbelieved. His parents could not comprehend that a person in the offender's position would breach the trust reposed in him. Victim Impact 9 The impact on the victims was what one would expect for offences of this nature. At the time, the victims were intimidated by the status and size of the offender. They were affected by having witnessed earlier assaults. They felt violated, ashamed and isolated. They lost self-confidence. Some became bullies and/or targets for bullies. Some developed anger management problems. 10 Some victims continue to experience flashbacks, sleep disturbance and intrusive thoughts. Most victims have experienced difficulty with trust and with developing close relationships, particularly with women. Some continue to struggle with depression and anxiety. Some turned to drugs or alcohol to alleviate their pain. In 1987, victim E died of a drug overdose. 11 In relation to individual victims, it is difficult to attribute particular emotional or behavioural disturbance - other than immediate disturbance - solely to the offences. There was other, uncharged conduct. Each victim must have undergone other significant life events, which may have contributed to his emotions or behaviour. However, it is inevitable that significant and repeated child sexual assault that goes unrecognised and untreated will have a substantial impact on the victim. So it is with these victims. Subjective Circumstances 12 The offender is now 52 years old (date of birth 10 June 1955). His sexual orientation is homosexual. 13 The offender has no prior or subsequent convictions. 14 The offender was one of three children. The offender's upbringing was dysfunctional. His father abused alcohol, and was aggressive and unapproachable. His mother suffered from a mental disorder that was diagnosed only later in her life. As a child, the offender had little experience of physical affection or emotional closeness. 15 From about 8 to 16 years of age (two or three years before the subject offences), the emotional abyss in the offender's childhood was occupied by sexual abuse by an older cousin. The abuse extended beyond fondling, to more serious abuse. Further, the evidence makes passing reference to abuse by a Christian Brother teacher. The sexual abuse of the offender disrupted the development of proper sexual/emotional integration. As a young adult, the offender found it difficult to distinguish between inappropriate sexual behaviour and legitimate affection, between gratification and genuine intimacy. 16 In 1972, the offender completed the Higher School Certificate. He was interested in the priesthood. He joined the Marist Order . As part of his training, in January 1974 he was posted to the Daceyville Primary School. Despite his youth and lack of teacher training (let alone training in relation to appropriate sexual boundaries), the offender was given responsibility for a Year 5 class of 30-35 students. In effect, he was unsupervised. 17 In January 1975, the offender entered the Marist Novitiate at Mittagong. Between 1976 and August 2002, he taught at various schools. In 1979, he obtained a Diploma of Teaching. In 1989, he obtained a Bachelor of Education degree. In 1998, he obtained a Bachelor of Arts degree, majoring in French. Generally, the offender taught religion, mathematics and French in secondary schools. 18 The offender tendered references establishing that, to the observation of colleagues and friends, since 1974 there has been no indication of sexual impropriety. The offender was a well-respected teacher. He was compassionate towards other teaching staff. He was a loyal and supportive friend. The Complaints and The Offender's Response 19 In 2002, the victims M and D approached the Church. The Church approached the offender, who admitted to a problem. In August 2002, he ceased teaching. 20 From October 2002 to May 2003, the offender voluntarily undertook a psychosexual treatment program known as Encompass Australasia. That program was established in 1996 for the purpose of assessing and treating clergy who have breached sexual boundaries. It was a full - time live - in program involving frequent individual psychotherapy, group therapy and education. After he completed the intensive residential component of the program, the offender entered a "continuing care contract", whereby he agreed to submit to supervision and ongoing treatment. The offender's final diagnoses at the conclusion of the Encompass Program included ephebephilia (attraction to peri-pubertal males) with age-appropriate attraction to adult men, lack of sexual integration (difficulty accepting homosexuality), avoidant personality traits and episodic generalised anxiety disorder. 21 Thereafter, the offender was posted to Rome as a translator. While living in Rome, he saw Dr Bourne, a psychiatrist, approximately 70 times. He received psychotherapy twice a week, reducing to once a month by mid-2007. 22 In mid 2007, the offender was contacted by his solicitor and first learned that his sexual misconduct had been referred to the police. He agreed to return to Australia to face charges. Prior to the offender's return to Australia, his solicitor informed police that the offender would probably plead guilty to charges. 23 On 28 August 2007, the offender was charged. The matter was adjourned several times, enabling the offender to obtain particulars of allegations. There were discussions between the offender's solicitor and prosecuting authorities. On 1 November 2007, in the Local Court, the offender entered pleas of guilty to the 17 offences. 24 The offender indicated pleas of guilty at the outset, voluntarily returned to Australia and entered pleas to 17 offences (including offences involving a deceased victim) after a short period of negotiation. In recognition of the utilitarian value of the pleas, I will discount by approximately 25% the longer sentences that I would otherwise have imposed. 25 After returning to Australia in August 2007, the offender continued intensive psychotherapy. 26 In cases of childhood sexual assault, for understandable reasons, victims often delay reporting the misconduct. In this case, following a complaint to the Church, there was a significant delay in prosecuting the matter. The principal significance of the post 2002 delay is that it enabled the offender to undertake treatment and allows the Court to assess his rehabilitation. 27 Since the complaints in 2002, the offender has been honest and open about his misconduct. Because pleas of guilty were indicated at the outset, the victims have been spared any prospect of being disbelieved and the trauma of testifying. The offender forwarded a letter of apology to the victims. During the sentencing proceedings, from the dock the offender apologised to the victims and family members who were present. His impromptu apology was sincere and insightful. The offender's early pleas and apologies indicate remorse. 28 In the opinion of Dr Canaris, the offender's treating psychiatrist, there is a low risk that the offender will re-offend, inter alia because he has been open, frank and cooperative about the offences, has accepted responsibility, has acquired victim empathy, has participated well in treatment, and has gained good insight into the moral culpability of his conduct. Further, the age gap between the offender and the victims was not large and, as far as can be ascertained, since 1974 the offender has directed his homosexual orientation towards adult males. Dr Canaris is very experienced in this field. I accept his evidence without hesitation. Seriousness of the Offences 29 Many of the offences involved relatively brief, low level fondling, which stopped when objection was taken. The fondling was far from the worst type of misconduct covered by s 81. There was no penetration, ejaculation, or fellatio. Except for offence 9, no significant physical force was used. No overt threat or bribe was employed. Generally, the offences were impulsive or opportunistic. 30 However, each of the offences is objectively serious because it involved a breach of trust by a person in authority. Through most of the 1974 school year, the offender was a very important authority figure to each of his pupils. His status was secondary only to that of their parents. In addition to educating and supervising his pupils, the offender was supposed to provide moral guidance. Several offences occurred when the offender and his pupils were on a religious retreat. The offender breached the trust reposed in him by his pupils, their parents and the Church. 31 The pattern of offending behaviour differed from that commonly adopted by adults who assault children. Generally, the offences were committed openly, rather than secretively. Because many of the offences were committed openly, the offender's conduct was observed by -- and impacted upon -- pupils other than the immediate victim. In relation to the victim E, it has been possible to charge the offender only because the misconduct was witnessed by another pupil. 32 On the other hand, the offender himself was only 18 or 19 years old at the time. He was a recent victim of prolonged and serious sexual assault by his cousin. The offender did not seek out the particular teaching position, but was placed there as part of his religious training. While the Church could not have known that the offender had been the victim of sexual assault that had impacted upon his insight and behaviour, the folly of placing an 18 or 19 year old youth in charge of 30-35 Year 5 boys must have been obvious. 33 The offender's youth at the time of the offences, the emotional deprivation that he suffered within his family, and the serious and prolonged sexual abuse perpetrated against him, terminating only a couple of years before the offending conduct, significantly impact on his moral culpability for the offences. He had limited appreciation that his conduct was wrong and could have dire consequences for the victims. The fact that most offences occurred relatively openly supports the view that the offender had little appreciation of the extent to which his conduct was morally reprehensible. 34 On the spectrum of objective criminality, individually, the offences can be characterised as low to mid-level. However, cumulatively, the offences are serious because of the number of offences and the number of victims. In my view, the only appropriate penalty is one of full - time imprisonment. Assessment of Appropriate Sentences 35 It is easy to be wise with the benefit of hindsight. In 1974, non - custodial sentences were common for offences of this type. In the three decades since the offences were committed, the community has come to appreciate the prevalence of sexual misconduct against children and to understand that authority figures, even figures of religious authority, are not immune from such misconduct. Topics which were taboo are now openly discussed in primary schools, and primary school children are aware that there may be dangers much closer to home than "stranger danger". Reflecting a seachange in community attitudes and awareness, the penalties now applicable for such offences are much greater. However, the offender's conduct is to be viewed in the social context of 1974 and he is to be sentenced according to sentencing practice at that time. 36 Sentencing objectives of accountability, denunciation and recognition of the harm suffered by the victims are very important. 37 The Crown argues that general deterrence is an important sentencing objective for crimes of this type. In my view, general deterrence is of lesser importance in this matter. First, the offender's moral culpability is limited. Second, the applicable sentencing regime and available maximum penalties reflect the mores of the 1970s. They were not designed to convey an appropriate message of general deterrence to today's community. 38 Nor is the consideration of specific deterrence of great significance. To the extent that he is capable, the offender has been rehabilitated. The community in which he lives and works is well aware of his guilt. Quite apart from any effect of specific deterrence, the offender will have neither the inclination nor the means to re-offend. 39 I take into account as special circumstances the sentencing regime at the time (the non-parole period was usually one third to half the head sentence), the full-time rehabilitation period of 6-7 months and associated deprivation of liberty, and the lack of any prior imprisonment. There is no evidence that the offender will serve his sentence in conditions that are substantially harsher than those experienced by other prisoners. 40 The offender is convicted. I consider that the minimum period that the offender should spend in custody before being eligible for parole is 18 months. There will be a total effective sentence of 3 years and 3 months imprisonment. The sentences will commence on 1 February, the date when the offender went into custody. I impose the following sentences (1) 3 months from 1.2.2008 to 30.4.2008 (4) 3 months from 1.2.2008 to 30.4.2008 (10) 6 months from 1.2.2008 to 31.7.2008 (11) 9 months from 1.2.2008 to 31.10.2008 (13) 6 months from 1.2.2008 to 31.7.2008 (14) 9 months from 1.2.2008 to 31.10.2008 (2) 6 months from 1.8.2008 to 31.1.2009 (3) 12 months from 1.8.2008 to 31.7.2009 (12) 9 months from 1.8.2008 to 30.4.2009 (15) 12 months from 1.8.2008 to 31.7.2009 (16) 9 months from 1.8.2008 to 30.4.2009 (5) 12 months from 1.2.2009 to 31.1.2010 (6) 9 months from 1.2.2009 to 31.10.2009 (7) 9 months from 1.2.2009 to 31.10.2009 (8) 9 months from 1.2.2009 to 31.10.2009 (17) 14 months from 1.4.2009 to 31.5.2010 (9) 22 months from 1.7.2009 to 30.4.2011 In relation to charges 5,6,7,8,9,17,and 19, I fix a non-parole period expiring on 31.7.2009. The offender is eligible for release to parole on that day. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.