Ryan v The Queen S164/1998 [1999] HCATrans 602 (30 November 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S164 of 1998

B e t w e e n -

VINCENT GERARD RYAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 1999, AT 3.53 PM

Copyright in the High Court of Australia

MR P.A. JOHNSON, SC: If the Court pleases, I appear for the applicant. (instructed by Carroll & O'Dea)

MR A.M. BLACKMORE: If the Court please, I appear with my learned friend, MR R.D. ELLIS, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J: We might hear from you, Mr Blackmore. How can the trial judge say that he takes no account whatever of the character of the accused?

MR BLACKMORE: It is interesting that your Honour should go straight to the point. We were only just discussing that a minute ago. Our submission in respect to that is that whilst it could have been perhaps more carefully worded, that it is a question of his character that he is dealing with. Essentially, a man who commits offences over 20 years whilst he is a priest cannot come along and say, just because he has been doing other good deeds in that time, that he has good character. It does not mean that he takes it as a negative against him. He did not say he did that.

McHUGH J: I appreciate that, but that approach assumes that people are one dimensional characters, that they are either good or bad.

MR BLACKMORE: Yes, but, legally, character is a factor that can be taken into consideration positively for him.

KIRBY J: Reading Judge Nield's remarks on sentence reminded me of nothing so much as the judge's remarks to Oscar Wilde. I mean, why was it necessary for the judge to - - -

MR BLACKMORE: Some of the statements were probably unnecessary, it would be fair to say, but - - -

McHUGH J: It is an extreme statement to say of a priest who has served his congregation well, at least in other respects, to be said that he cannot see any good in him.

MR BLACKMORE: I appreciate that, your Honour, but I am trying to distinguish what he said from the way in which it could be dealt with by a court. Is there an error discernible in the statement? In our respectful submission, it would have to be one that you would infer because he does not, in fact, go the next step, for example, and derogate from the sentence by reason of his bad character. He does not add something to the sentence, I mean by that. He simply says he is not entitled to good character.

KIRBY J: No, but if he calls - he called eight witnesses, I think, and if they depose to the fact that he did good deeds, why do they get excluded absolutely from consideration? This is not a question of minuses, this is a question of non pluses.

MR BLACKMORE: Yes, it is.

KIRBY J: That is a conventional, basic, universal principle of sentencing, that you take into account that people are not, as Justice McHugh says, one dimensional, that people have different facets of their personality and may have done good deeds for which they are entitled, in their predicament, to some consideration.

MR BLACKMORE: Well, it is a question of exactly what sort of consideration you give.

KIRBY J: I tell you what was occurring to me as I was more and more reading Judge Nield's comments, which were basically confirmed in the Court of Criminal Appeal - not the comments, the result. If we look at this case, the misconduct, the wrong and criminal conduct all arose out of a common single facet of this man's personality and I realise, of course, that the victims must be protected and society must be protected and he must be punished, but it is all coming from the one source and I just have in the back of my mind that there must be some principle of sentencing that you should take into account the fact that the source is the one source. You could say it is his sexual fantasy. You could say it is his predicament as a priest committed to celibacy. You could give different excuses but it is the one phenomenon.

MR BLACKMORE: I understand that the phenomenon was, in this case, associated with paedophilia. It was identified as being paedophilia.

KIRBY J: This man may have been a situational paedophile just as in some cases prisoners who are themselves heterosexual become homosexual during the period of their incarceration. He was in a situation where he was denied marriage, denied ordinary human contact and he then committed impermissible and criminal acts. But it is all from the one source and I just wonder if this Court ought not to consider this. Has this been considered overseas? This is now a universal problem.

MR BLACKMORE: No, the Court has only recently looked at a similar case in AB and it is not in this sense that your Honour is talking about.

KIRBY J: But in the United States, as I understand it - I have not studied this but there may be some new approach or different approach in California or in some parts of the United States to the problem and to sentencing in this area.

MR BLACKMORE: I am not aware of it. I just, quite frankly, say I am not aware of it. Perhaps the applicant is and he can - - -

KIRBY J: If the Court were to consider the matter we would need some assistance on that or at least I would because it just seems to me this all goes back to the one feature of this man's personality and its multiple outlets. I am thinking in the drug area. I mean, would one not, in a case of multiple cases of break and enter, a robbery to feed a drug habit, would one not take into account the fact that it all arises out of the one aspect of the person's predicament.

MR BLACKMORE: I can answer that very briefly. In a recent case called Henry which I think may be, in fact, subject to special leave at some stage in the future, in relation to break and enter charges, there was - a robbery, it was, was it, yes - there was consideration of if the person committed the robbery having a drug habit and it was found that whilst it was a relevant factor on a sentence, it was not something that could be taken into consideration positively for the persons. So, I am not sure I can give much more assistance than that. Likewise, we would submit here, you cannot say because you are a serial criminal in some fashion - and paedophilia is a criminal activity. There is no excuse about it.

McHUGH J: Well, accepting that, it seems to me the problem of the judgment is at page 17 where he says, at line 40:

he was a man of unblemished character and reputation. But an unblemished character and reputation is something expected of a priest. His unblemished character and reputation does not entitle him to any leniency whatsoever.

So, that puts him in the same class as a person with hundreds of convictions.

MR BLACKMORE: But in reality he had many convictions. I mean, you cannot look at him at the day in which he was convicted. He was convicted of charges which went back 20 years. He was doing that activity throughout the 20 years. It is as if he had been convicted every time throughout that period. It would be misleading to look at it in any other way. You must look at his character as a duality to his character, clearly. On the one hand, he is a priest, doing good deeds it must be accepted, but on the other hand, positional or otherwise, he is committing serious criminal activity right throughout, as much as he would if he had been stealing - - -

KIRBY J: There is no question about that.

MR BLACKMORE: - - - from the parish box over all those years. It would be still serious criminal activity.

KIRBY J: There is no question that it is very serious and has to be punished very seriously but the question is, not entitle him to any leniency whatsoever? That is a very absolute thing to say to a human being.

MR BLACKMORE: Very absolute. It is in the consideration though that does he get any consideration for character as a positive in the sentence and his Honour was saying, in our submission, although perhaps not as carefully worded, that he is not entitled to any consideration positively because right throughout the 20-year period he has been committing these offences.

McHUGH J: But that seems to me to raise a real point of principle. Let us take a simple case of embezzlement. Somebody may have been embezzling money for a decade or more but, surely, if they are entitled to have taken into account all the other good things that they have done in their lives, this judge seems to have taken the view that, at least on one reading of it, that he just was not entitled to anything for what he had done as a priest, for the services to the parishioners.

MR BLACKMORE: It is an interesting paradox, in a sense, because here was a man who had to deal with - I mean, he was a priest. He had to be this person who was a good person to be in the position to carry out the offences that he had to carry out. I understand that is the way his Honour dealt with the matter. The question is, is he wrong in that - - -

McHUGH J: It seems to me it does raise a question of principle which this Court should have a look at. The question of principle, I think, is - you can frame it in different ways, but it is basically if you have been concealing offences for a long period of time, are you entitled to have taken into account all the good works that you have done during that time notwithstanding that you have been guilty of these offences over a long period of time.

MR BLACKMORE: I take it your Honours will not be further convinced by me going through various offences that he has - - -

McHUGH J: No, you should never - - -

MR BLACKMORE: Never assume anything - - -

McHUGH J: Never assume anything. Counsel have made me change my mind on more occasions than I can recollect.

KIRBY J: And occasionally even me.

MR BLACKMORE: On this particular topic I really do not have more I can say, I mean, other than to drawing other analogies: can a serial killer also come along and say later that he used to help old ladies across the street before he took them in and killed them?

KIRBY J: No, I do not think that is what is considered here. I mean, it is not that he helped the school boys to his study to study with them in order to abuse them - - -

MR BLACKMORE: No, I appreciate the - - -

KIRBY J: It is a question of whether his activity for adults, for the church or society are to be given no weight whatsoever. That is a very absolute exclusion and, if I can say so, does seem to bear out both the quantum of the sentence and the way in which it was expressed by the sentencing judge. I mean, it is a double - I know we have said you cannot really look at this, but it is double what a person would get for murder.

MR BLACKMORE: But there is the question of not unbalancing the sentencing in relation to these particular offences because in AB the Court did not really make a strong statement, did not make any statement that the offences there did not warrant the sentence that was imposed and yet the sentence here - - -

McHUGH J: I did, but I was in dissent. I said it was open - the Court of Criminal Appeal.

MR BLACKMORE: Well, as a majority then I will stick with.

KIRBY J: The majority did not have to because they said that the issue of extradition had not been taken into account and it is not the same but there is something of a similar issue in this case which is whether, if this sentence stands, it really sends a message that there is no benefit, or little benefit, or big disadvantage in owning up to offences going back a long time and involving multiple victims which it must surely be in the public interest and the victim's interest that people charged with these offences should do.

MR BLACKMORE: That is two-edged sword, with respect. The question of general deterrence is in relation to try to stop people doing these acts. There is no suggestion that there is paedophiles running off the streets confessing their guilt as a result of given lenient sentences. I think the courts are thinking that we must stop this sort of activity and the only way to stop it is to try and enforce serious penalties. So, with respect, I know that that is the submission made by the applicant. I do not think it is a good submission for that reason.

When I come to disparity, in AB for example, there were nearly half as many complainants and, perhaps, you just cannot look at the things this way and I know we are not arguing for a quantifiable discount or any of those sorts of things, but there will be a certain disparity if the sentences are changed. In essence, we are saying this was not excessive given the pattern of sentencing that has taken place in New South Wales and it is, -essentially, that is an issue for New South Wales. The court did acknowledged that in AB.

KIRBY J: The fact that he was a priest - and this is similar, I think, in AB - was taken as a big minus in his case but there was a report which was reported in the newspaper this week or last week about the failings of the church in responding to people in this predicament and I wonder if it is not a consideration that can be taken into account that, in a sense, people in this position are, in part, victims themselves; that they are denied any sexual life and they are in a situation where they are in a position of temptation and it is all coming from the one source. Now, I am not expressing this very well but I have a feeling that the back of the considerations that I have mentioned there must be consideration in other jurisdictions about this because it is a worldwide problem.

MR BLACKMORE: In relation to whether the church handled it well or not though, your Honour, the opportunity was obviously given to the applicant to lead evidence along those lines. There is no evidence before the Court. There obviously may be - - -

KIRBY J: No, I realise that. I am merely talking about his situation as a minister of religion committed to a celibate life.

MR BLACKMORE: There is really nothing more I can usefully add, your Honours.

McHUGH J: Yes, thank you, Mr Blackmore. Yes, we need not hear you in reply. There will be a grant of leave in this matter.

KIRBY J: I hope that when the matter comes on that some thought will be given to the larger issues because we have already had two and we have had applications in a number of other cases and if the matter is going to come

up, the key to its coming up is the passage Justice McHugh has presented but once it is before us, then the whole issue is before us and I think the Court will need assistance in how to approach the issue.

McHUGH J: Yes. Adjourn the Court.

AT 4.10 PM THE MATTER WAS CONCLUDED