R v Gaven [2014] NSWDC 189

District Court New South Wales

Medium Neutral Citation: R v Gaven [2014] NSWDC 189 Hearing dates: 7 August 2014 Decision date: 07 August 2014 Before: Berman SC DCJ Decision: Sentenced to imprisonment I impose a non-parole period of nine months I set a head sentence of eighteen months. Catchwords: CRIMINAL LAW - Sentence - Indecent assault by person in authority - To be sentenced as per tariff applicable at time of offending - Comments on appropriateness of current law Legislation Cited: Parole of Prisoners Act Sentencing Act Category: Sentence Parties: The Crown John Gaven Representation: Counsel: G Wagstaff - Crown Solicitors: Director of Public Prosecutions Greg Walsh and Co - Offender File Number(s): 2008/198689 Publication restriction: There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants

SENTENCE 1HIS HONOUR: On 1 August 2014 a jury of eleven, after lengthy deliberations, found the offender, John Gaven, guilty on count 3 on an indictment containing five counts. The jury were unable to reach a verdict on counts 1, 2, 4 and 5 and so they were discharged from delivering verdicts on those counts. Thus it is my task to now sentence the offender on count 3. 2The offender was a Brother at a Catholic boys high school. The school took both borders and day boys. The offender held the position of Vice President and was responsible for discipline and also had other duties which involved supervising, on occasions, the borders' dormitories. 3A boy, now a man, who I will identify by the name of "W", was a border. In 1988 he was in Year 8 and thus living in the Year 8 dormitory. W gave evidence that one evening, whilst in that dormitory and in his pyjamas, the offender approached him, put his arm around him and ran his hand down his back until his hand was inside W's pyjama pants touching his bare bottom. W's evidence was that there were other boys around at the time. One of them must have been H because he was an eye witness to the events which W described. H gave evidence which strongly corroborated W's evidence. 4That the offender would do what he did in the presence of numerous other students indicates quite clearly his appreciation of the power he had over boys in the school and his expectation that he could conduct himself as W described. 5Further evidence as to the offender's attitude towards boys at the school can be found in the evidence of what the Crown called the tendency witnesses. Counts 1, 2, 4 and 5 concern three other complainants. Given that the jury did not return verdicts of guilty on those counts it would be inappropriate for me to take their allegations into account in sentencing the offender. But there were six other witnesses relied on by the Crown. H's evidence has already been mentioned. The jury clearly accepted his evidence beyond reasonable doubt and so do I. SW gave evidence of similar conduct described by both W and H but said that the student involved was not W but HB. The evidence suggested that HB was unlikely to have been the boy involved and so I will proceed on the basis that SW's memory as to what occurred was accurate but that he is mistaken as to which boy was involved; thus I find that he was a further eye witness to the conduct described by W and H. 6Then there was evidence given by four other witnesses, also men at the time of giving evidence but boys at the school at the time of the acts they described. N and P gave evidence of very similar conduct on the part of the offender. They each testified that whilst they were showering, the accused displayed an obvious interest in their genitals, staring at P's genitals for five to ten seconds and commenting on the size of N's genitals. 7Another tendency witness was B. He gave evidence he saw the accused sitting on a skateboard with a younger student on his lap and that when the accused got up B was able to see that the accused had an erection. 8Finally there was the evidence of K whose evidence was that as he was walking back from football and heading into the showers he saw the accused with his arm wrapped around a boy with the accused's hands on the boy's back just above his belt line. Although K described contact between the offender and the unnamed boy which may have been relatively innocuous, K himself did not consider it so and his evidence was that other boys in the vicinity had the same reaction as he did. In any case the conduct described by N, V and B clearly establishes a great deal about the accused's behaviour and attitudes. I accept the evidence of the tendency witnesses beyond reasonable doubt. 9Of course the offender is not to be sentenced for offences for which he has not been found guilty. My purpose in referring to the evidence of S, W and H was to make it clear that I am satisfied that they were describing the very incident which was the subject of count 3. My purpose in referring to the evidence of N, P, K and B is because their evidence establishes that the conduct of the subject of count 3 on the indictment was not an isolated act of sexual misbehaviour by the accused. In addition, such conduct does demonstrate an attitude on the part of the offender that he could behave in a sexual way towards young boys at the school, boys under his authority, and get away with it. Fortunately he has been proved wrong in that regard. 10I suppose now is the right time to mention other misconduct of the offender. He faced trial at an earlier stage before Garling J on a number of other offences committed against two other boys. He was found guilty and indeed his appeal against his conviction on those matters was dismissed during the course of the trial at which I presided. The offences for which the offender is currently serving a sentence involve an offence of buggery committed against a teenage boy in the mid 1960s and various sexual offences including a serious example of offences involving the penetration of different boys' anus. The sentences imposed total seven years and six months with a non-parole period of four years and six months. 11Authority which binds me says that the offender is to be sentenced by me for an offence committed in 1987 according to the tariff which existed at the time he would have faced sentence for such misconduct. Cleverer people than me have commented on the inappropriateness of that rule of sentencing. It is undeniable that the last thirty years has seen an increase in awareness on the part of the Courts of the harm that sexual offences, particularly against children, can cause. In this trial P, a grown man, cried as he gave evidence that the accused stared at his genitals for five to ten seconds. 12The Courts have only belatedly understood the seriousness of conduct such as that for which the offender must now be sentenced. Thus to sentence the offender according to standards which existed in the late 1980s is to perpetuate the errors that were made by sentencing Courts at that time. Offenders such as Mr Gaven benefit from earlier mistakes made by sentencing Courts even where we now know that these earlier decisions were wrong. 13It is a rule of sentencing that a sentence must reflect the objective gravity of an offender's conduct but even that rule, often described as fundamental, gives way to the rule that an offender must be sentenced according to the standard which existed at the time of the offence. As will be obvious I do not agree with the present stage of sentencing law so I should make it abundantly clear that I recognise that my views must be put aside. I am entitled to suggest that the law is wrong and that it should be changed; I am not entitled to ignore it. 14Accordingly, I will sentence the offender as though he was dealt with at the time of or soon after his offending conduct occurred. This causes a number of problems. Two are immediately apparent; first, would the offender have been sentenced under the Parole of Prisoners Act 1966 or the Act which replaced it on 25 September 1989, the Sentencing Act 1989. Secondly, there is the difficulty in obtaining information about what sentences were actually imposed in earlier times. 15The Courts have told sentencing Judges that we are entitled to use our own experience. Fortunately in this case I did my first criminal trial in 1987 and for the next ten or eleven years my practise involved criminal matters alone. Just what a Judge with less experience in criminal matters in the late 1980s was supposed to do is not clear to me. Also, I have been greatly assisted by the submissions of Mr Walsh and the Crown. Their submissions confirm my memory. Sentences for conduct that is described by W were significantly lower in the late 1980s than they are now. 16On the other hand, as I raised with Mr Walsh in the course of submissions, it is important not to just focus on the physical actions of the offender. Although in the vast repertoire of conduct whereby one person can sexually assault another, placing a hand on a young boy's bare bottom is well towards the lower end of that range, a number of things must nevertheless be borne in mind. Firstly, the appropriate range is conduct which amounts to indecent assault. Secondly, as I mentioned above, this offence was not isolated. And thirdly, as the jury's verdict makes clear because it was an element of the offence, the complainant was under the authority of the offender at the time. This last aspect is quite significant. People can be under the authority of others in various circumstances perhaps ranging upwards from a relationship of employer and employee. The relationship between W and the offender is very much at the higher end of the scale. The offender held an enormously powerful position over boys at the school, which allowed him to sexually assault not only W, but also engage in other conduct I have described. Just as all indecent assaults are not equal, nor are all positions of authority. Notwithstanding that, for example, the offender did not touch W's genitals, the offence was a serious example of an indecent assault by a person in authority. 17Of course, despite the fact that the offender has been convicted of various offences involving the sexual abuse of young boys and that I have found beyond reasonable doubt that he engaged in other improper behaviour, the offender is entitled to have me take into account his otherwise good character. Evidence as to the good work that Mr Gaven has done in the community was adduced before me, as it was before Garling J. In my Court most reliance was placed upon the offender's work with those suffering from HIV/AIDS. His work with such people began in the early 1990s at the time when attitudes to that condition were much less enlightened than they are today. People with that condition were discriminated against. There were wellknown examples. 18A great deal of publicity was directed to bringing to community attention the harm which contracting that disease occasioned to sufferers of it. Who can forget the image of the grim reaper knocking down crying children with a bowling ball. This in turn, although no doubt well intentioned of course, led to attitudes towards sufferers of the condition which were, with the benefit of hindsight, regrettable in the extreme. In addition there was, and to some extent still continues to be, an attitude that some people suffering from the disease are innocent victims, while others such as intravenous drug users and homosexual men do not fall into that category. Thus, the offender's decision to involve himself in caring and counselling for sufferers of HIV/AIDS in the early 1990s was a highly commendable one. 19At that time people suffering from HIV/AIDS usually died within a relatively short space of time. The offender's good works involved caring for those people who had often been shunned by their own families. 20The offender's good works extended to informing himself about the nature of the infection. He was given permission to conduct funerals of those he had cared for and indeed conducted 84 funerals over a period of six years. The offender was often the only person with sufferers of HIV/AIDS as their lives ended. He did such work in the early 90s in Adelaide. He came to Sydney in 1997 and continued to work as he had done in Adelaide. He did so up until his arrest in September 2008. 21The offender is entitled to me to treat his otherwise good character without there being any discount on the weight to be given to that circumstance because of his offending. Indeed, this is not a case where the offender's good work, as I have just outlined it, enabled him to commit the offence against W, or the other offences which have been proved against him, and so I will regard, very much in the offender's favour, the circumstance that he has done enormous good work in the community, work of which he is entitled to be proud. 22I have recognised also that there has been a significant delay between the offender's crime and today's sentencing. On the other hand, there is no suggestion that the offender has spent the intervening years fearing the knock on the door which would reveal him to all as the person he truly was and which would lead to him facing sentence for his offending. 23I take into account - as did Garling J - that there has been a degree of public humiliation. Many offenders, even sexual offenders, are dealt with in Courts where there is not a single person in the public gallery and there are no media reports of any aspect of their prosecution and sentencing. This is far from the case for the present offender. 24I turn now to an issue raised on evidence concerning the conditions of the offender's custody. It is possible and perhaps even likely that he will serve the entirety of his sentence, both that imposed by Judge Garling and that which I am about to impose, in protective custody. But it is no longer the case that there is an automatic assumption that those who serve sentences in protective custody will do so in conditions which are less favourable than those of the general prison population. Indeed, the evidence of the offender was that his conditions of custody varied according to which gaol he was at. So I will take into account that there is a risk that his conditions of custody will be harsher than those of the prison population but that is all that the evidence establishes. In any case, when looking at other sentences for those who have sexually assaulted children it must be borne in mind that any reduction in sentence because of the conditions of custody has usually already been built into those comparative sentences. 25Mr Walsh asked that I make a finding of special circumstances in his client's favour. The Crown does not speak in opposition to that. Two issues justify that finding, the first is the issue of accumulation which I will shortly address, and the second is the difficulty in knowing under what sentencing regime the offender would have been sentenced in the absence of any delay. As is well known before the introduction of a statutory ratio in the last days of Parole of Prisoners Act (and then in the Sentencing Act) non-parole periods were often less than half of the head sentence, often significantly so. 26The principle of totality of course applies. I have no doubt that had Judge Garling sentenced the offender for this offence at the time he was sentencing the offender for the matters before him his Honour would have partially accumulated the sentence to be imposed for this matter. I will do that also. His current non-parole period expires on 21 September 2017. In order to give effect to the principle of totality my sentence will commence on 21 June 2017 three months before the expiry of his current non-parole period. 27I impose sentence as follows: I impose a non-parole period of nine months to date from 21 June 2017 and to expire on 20 March 2018. I set a head sentence of eighteen months. The offender is thus eligible to be released to parole on 20 March 2018. 28In effect, that means, Mr Gaven, six months extra in custody before you will be considered for parole.