Ryan v The Queen S248/1999 [2000] HCATrans 317 (15 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S248 of 1999

B e t w e e n -

VINCENT GERARD RYAN

Appellant

and

THE QUEEN

Respondent

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 JUNE 2000, AT 2.23 PM

Copyright in the High Court of Australia

MR P.A. JOHNSON, SC: If the Court please, I appear for the appellant with MR D. JORDAN, of counsel. (instructed by Carroll & O'Dea)

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

McHUGH J: Yes, Mr Johnson.

MR JOHNSON: Thank you, your Honours. This appeal raises important issues of sentencing principle. These are issues of general importance to the criminal justice system. They are issues which arise for consideration frequently in the criminal courts where the vast majority of cases are dealt with by way of plea of guilty. The importance of application of principle in sentencing has been emphasised, on many occasions, for present purposes by this Court in Pearce (1998) 194 CLR 610 at 624 where, in the joint judgment of Justices McHugh, Hayne and Callinan, at paragraph 46 the Court said:

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

The appellant emphasises that as being an important benchmark and starting point in this appeal.

Secondly, a decision of the Court of Criminal Appeal in New South Wales in Rushby (1977) 1 NSWLR 594 - that is not on the list but I do have multiple copies that I can provide. I would seek to take the Court to one passage in that judgment now. This is a judgment frequently cited. It was, in fact, cited for a number of purposes in the decision of this Court in AB, to which reference will be made. If I could take the Court to the passage in question in Rushby. It appears in the judgment of the Chief Justice at page 597 commencing at point D:

The determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements. Inevitably a sentencing judge will be influenced by subjective considerations. There is the ever-present human situation of a man or woman standing before the court to suffer the solemn pronouncement of criminal judgment. But a judge is not cast adrift on an unchartered sea involving his bearing unaided a personal burden of attempting to achieve abstract justice. The judicial discretion underlying the formulation of a sentence must be exercised with due regard to principles of law deducible from authoritative decisions. The philosophy of the Common Law requires adherence to established doctrines and principles that have over years, and in multiple instances, been found to be best calculated to serve the ends of justice. The adjudicative process, if it is to be consistent and ordered, must observe and apply these doctrines and principles, and thus must necessarily be attended by a requisite disengagement and detachment. It is cool reason, not passion or generosity, that must characterize sentencing, as all other acts of judgment. Although the discretion left to the judge is wide, the doctrines and principles established by the Common Law in regard to sentencing provide the chart that both relieves the judge from too close a personal involvement with the case in hand, and promotes consistency of approach on the part of individual judges.

The appellant submits at the outset that the correct application of principle involved not just the recital of the relevant formula of words. In this case, however, it will be submitted in due course that not even that occurred in relevant respects.

The appellant, in his written submissions, has indicated that there are two issues arising in the appeal. Was there error - this is at paragraph 2 - in principle in sentencing the appellant on the basis that evidence of character, reputation, positive works and achievements, entitled him to no leniency whatsoever. Secondly, was proper credit given to the appellant for his disclosure of a very substantial number of offences otherwise unknown to the authorities, particularly given that it is in the interests of the criminal justice system and in the public interest to encourage such confessions.

The appellant stood for sentence on a large number of offences. The part of the written submissions commencing at paragraph 4 summarised the charges which he faced. There were 14 charges on an indictment and 39 offences on a form 1 document, those offences to be taken into account for the purpose of sentence. As a matter of background, as the judgment of Judge Nield revealed, he had previously been sentenced by Judge Rummery for other offences about a year prior to the time he stood for sentence before Judge Nield.

Judge Nield made a number of findings which are set out in the written submissions at paragraph 10 and following. For present purposes - - -

KIRBY J: Could you just make clear the cases that went before Judge Rummery and the cases that came later before Judge Nield and that are now before us.

MR JOHNSON: Yes.

KIRBY J: Were the latter only the cases concerning the three - they were the cases of the persons who had gone to the police, although your client had spoken to them before the case before Judge Rummery, plus all the other ones that your client owned up to when the matter went before Judge Nield.

MR JOHNSON: Yes, before Judge Nield were the three persons, Messrs Georgoussis, Ball and Martin, together with 25 further victims, the identity of which was volunteered by the appellant. The matters dealt with by Judge Rummery involved other persons. The judgment of Judge Rummery is in the appeal book on page 32 and that identifies the particular crimes that his Honour sentenced the appellant for in 1996.

If I could take the Court to the outline of submissions at page 7, it is submitted that there has been an error in principle in the way in which his Honour Judge Nield approached the appellant's disclosure of - - -

GUMMOW J: You are not in the Court of Criminal Appeal. The question is: where did the Court of Criminal Appeal commit an error in principle?

MR JOHNSON: It is submitted that the Court of Criminal Appeal erred in, in effect, confirming the approach taken by Judge Nield with respect to the appellant's disclosure of previously unknown crime. The Court of Criminal Appeal referred to the approach taken by Judge Nield and noted that his Honour had given him credit and no error was revealed. So, the Court of Criminal Appeal, in effect, adopted or confirmed the approach taken by Judge Nield and it is submitted by the appellant that the error of Judge Nield, who had been confirmed in the Court of Criminal Appeal, it is an error at both levels and it is an error which is before this Court.

McHUGH J: I must say I am surprised you start with this point. I think you are on very weak ground, speaking for myself. If you look at what the judge said at 207, line 7:

His admissions show his desire to make a complete disclosure of his conduct. These things go to his credit, show his contrition and entitle him to a discount in punishment.

What is the matter with that?

MR JOHNSON: The principle emerging in Ellis, it is submitted, is that what the appellant was entitled to be taken into account on his behalf was a significant added element of leniency. This court, in AB, referred to the term "considerable leniency" in the judgment of your Honour Justice McHugh - - -

McHUGH J: Yes, but they are factors that have to be weighed up.

MR JOHNSON: Yes.

McHUGH J: It is a factor that has to be taken into account. He gets a discount for that. As the Court said in Pearce it is not a mathematical exercise.

MR JOHNSON: But the starting point, it is submitted, is to correctly identify the principle as disclosed with respect to this issue. What Ellis made clear is that a so-called "discount in punishment" - - -

McHUGH J: I am not sure, Mr Johnson, that it is proper in this particular context to be talking about principle as opposed to factors. The principle leads to a result. Its application leads to a result. This does not lead to a particular result. It is a factor that you take into account in reaching a particular result.

MR JOHNSON: But in approaching the particular factor there is a principle as to how that factor is to be used and, in circumstances such as this, 25 victims identified for the first time by the offender in circumstances where there was no evidence to indicate that those 25 persons would have otherwise come forward and, in fact, evidence that rather suggested the contrary, one had, in the words of Ellis, as a starting point, in my submission, as a matter of principle, the need to bring to bear in the appellant's favour a significant added element of leniency with the degree of - - -

McHUGH J: But this is a case where the judge has applied the totality principle.

MR JOHNSON: Yes.

McHUGH J: Therefore, you have a compressed sentence in any event and in such a case it may well be that because of the application of the totality principle the discount for early disclosure or pleading guilty or contrition may be quite small because it is compressed. Everything is compressed.

MR JOHNSON: The fact that there may be a compressing because of the totality principle, in my submission, does not stand in the way of what was emphasised in Pearce and Rushby, but when there is a principle to be brought to bear with respect to an aspect of the case the principle needs to be correctly stated and then applied.

HAYNE J: Is your complaint a complaint of specific error that the judge either did not advert to the question or that the judge did not advert to the proper question? Which?

MR JOHNSON: It is that the judge did not advert to the proper question, effectively, that his Honour in looking at this area identified the fact that there had been offences volunteered but did not identify and apply the Ellis principle and did not proceed to engage in a process of assessing the degree of likelihood of the guilt being discovered by law enforcement authorities as well as guilt being established against the person accused, that being, in accordance with Ellis, the flexible aspect. Where there is, as in this case, identification of 25 victims, unknown before, volunteered by an offender in circumstances where as it turns out only 7 of those 25 persons were actually found and statements taken, there were 18 of those victims who were never the subject of a statement. The only evidence against the offender with respect to those 18 was his own admission. With respect to the other 7, their identity was only disclosed by him and they were found by the police as a result of that admission.

HAYNE J: What more does the judge say than he says in the first four lines at 207? What more should a judge do than advert to the matters that he has there identified?

MR JOHNSON: In my submission, his Honour should advert to the term used in Ellis, "significant added element of leniency", or the term "considerable leniency", "special leniency", even a reference to the Ellis Case itself as being an indication that his Honour has had regard to the statement of principle in that case and then to indicate an application of that principle, in my submission, which would go beyond what is said in the first four lines of page 207.

McHUGH J: But in Ellis itself, the court said "this particular factor is one to which greater or lesser degree of weight must be given".

MR JOHNSON: Yes, that is undoubtedly so, but the starting point is to determine what the principle is that the court is seeking to apply. In this case, the question of greater or lesser weight involves, as a necessary starting point in this case, a recognition that the disclosure by the offender of his crimes against these 25 persons entitled him, as a starting point, to a significant added element of leniency with the question of whether that was increased even further depending upon the likelihood of the guilt being discovered by law enforcement authorities.

KIRBY J: What inference does one draw from the large number of the victims who did not want to make a statement? Is that that they could not be found or that they preferred not to make a statement?

MR JOHNSON: As I understand it, they could not be found. As I understand it, this is what occurred. On 27 August 1996 the appellant, in a record of interview, disclosed the identity of a large number of these persons. The police thereafter, over a period of some months, sought to find them. They found seven. But in relation to 18 of them, there is no statement - - -

KIRBY J: Of the seven that they have found, four did not wish to make a statement. Is that correct? This is page 10 of your submissions. Three did, that is to say complainant 1, 2 and 7, and four did not.

MR JOHNSON: What the table discloses is whether the victim made a statement to the police after the appellant's admission. Now, where "no" appears, that means that there was no statement obtained from that particular victim. Where "yes" appears, that means that there was a statement obtained from that particular victim, but the mathematical calculation of the persons mentioned here reveals that there were 18 who never made a statement. And the statement of the police officer, Detective Grant, which is in the appeal book, reveals that he made efforts to find the persons. At page 61 of the appeal book he - - -

KIRBY J: Did you say 18 or 8?

MR JOHNSON: Eighteen. There are 28 victims altogether in the end in the Judge Nield charges. Of those, 3 were previously known; 25 volunteered. Of the 25 volunteered, statements from 7, in addition to the 3 obviously whose identity was known, and there were some 18 who did not make statements at all. At page 64 of the appeal book, Detective Grant says in paragraph 8, line 14:

As a result of the information given to me by the defendant during the interview I had cause to contact and obtain statements from a number of people. I liaised with the defendants solicitor during this time both in writing and on the telephone.

And, indeed, the statement of facts itself which is at pages 53 and following indicates - it was a cross-reference to the record of interview, but at page 60, for example, in relation to counts 37 to 39 on the form 1, Detective Grant says:

On the day of the Committal at Cooma Local Court regarding this matter the accused spoke with Police and stated he had committed Indecent assaults upon -

Mr D and Mr L. So that indicates the way in which things came forward. But from the point of view of statements being obtained, the position was as indicated in the appellant's submissions and in the accompanying table.

It is submitted that this is not just a matter of saying his Honour observed that there was some offences volunteered by the appellant and that his Honour took that into account. What is required is that his Honour take a principled approach in taking it into account, and it is submitted that that involves an application of the principles emerging from Ellis and an assessment by his Honour as to the likelihood of the volunteered crimes otherwise becoming known. In this case his Honour just referred to a discount.

McHUGH J: Yes, but he makes it in the context of going through various features and he says, correctly, it goes to his credit, his entitled to a discount. Then at 209 the judge sums it up. He says:

Balancing the disadvantageous features, those being.....against the advantageous features, those being, particularly, the prisoner's admissions -

et cetera. Then he comes to the view that proper sentence is for 171/2 years.

MR JOHNSON: That shows that his Honour, as a matter of record, adverted to the fact that there was volunteer crime here, but the scale of it is not adverted to, nor is it put any higher than that a discount in punishment would be given.

McHUGH J: Well, this case perhaps shows the problems of stopping counsel for the applicant and not calling, not even calling on the counsel for the respondent. Speaking for myself, you would never have got special leave on this point as far as I was concerned if the matter had been argued out. As far as I am concerned, you got special leave on the second point in the case. I know it was in your notice of appeal.

KIRBY J: I think you might have still got special leave from me on this point, because your point is: look at what Ellis says, look at what the Court of Criminal Appeal, which we are reviewing, says. Ellis states the principle in a way that commonsense would tend to support, namely if but for a confession a person would not have been before the Court on those offences, therefore, both the public interest favours revelation, expiation and also favours taking that into account in a very significant way. That is what Ellis says. If you look both at what the judge said here and the sentencing imposed, it does not appear as if that was done in this case. That is your argument. It is either good or bad, but I think we understand it.

MR JOHNSON: That is the argument - - -

HAYNE J: And it is an argument that depends upon notions of manifest excess rather than upon notions of specific error, for it is an argument that depends upon assessment of the value of the sentence in fact imposed.

MR JOHNSON: I would submit it involves a statement and a wrong application of principle because the Ellis principle was not applied. In that way, I would submit, it falls within the first category of House v The King and not the manifest excessive approach, although an examination of the sentence and the way it was structured may tend to confirm error in principle but it is the failure to state the principle, failure to make thereafter findings that would, in effect, evidence the application of the proper principle. His Honour dealt with this issue in just a few lines in a long judgment when this was a very powerful factor in the appellant's favour on sentence. It is submitted that error in principle is demonstrated.

KIRBY J: Can I ask you: you will recall that on the special leave I raised the issue of whether, if this was conduct which is a repeated manifestation of, as it were, the same underlying cause, if, for example, this was a repeated conduct, it could be traced to schizophrenia or repeated conduct that could be traced to kleptomania or repeated conduct that could be traced to heroin addiction. I have in the back of my mind that there is some principle that you then take the manifold examples as indicia of the underlying cause and that that is in some way a mitigating factor. Has that been considered? Is there anything that is relevant that we should know about sentencing principles in that connection?

MR JOHNSON: In the area of drug addiction the authorities tend to suggest it is not to be taken into account as a mitigating factor in itself. The most recent statement of that was in a guideline judgment in the Court of Criminal Appeal in New South Wales, Reg v Henry, which is reported in the New South Wales Law Reports. I will just obtain the reference to that. With respect to other areas, it is a question - - -

KIRBY J: Take kleptomania, for example. I think the famous Hollywood actress, Hedy Lamarr, was convicted of an offence and that issue was presented, that she had this mental disturbance that led her to repeatedly steal things from stores. It was taken into account in that case, according to the obituaries that I read of her. Now, why would one not do that in the sense that these are recurring manifestations of what is, essentially, a mental disturbance? Anyway, you have not been able to find anything?

MR JOHNSON: Not dealing with those areas.

KIRBY J: Schizophrenia?

MR JOHNSON: There are, with respect to a person suffering from a mental disorder, authorities that suggest that that can be brought to bear and that there may be less reason for specific deterrents, for example, but they are disorders. None of the cases of which I am aware refer to paedophilia, in that context - - -

KIRBY J: I think there are some Canadian cases, specifically Ontario, which deal with paedophilia amongst mental disorders.

MR JOHNSON: That is certainly a proposition that is recognised in the criminal law in relation to mental disorders with respect to a person who is standing for sentence with respect to a crime. Drug addiction itself, though, and I can give the Court a reference to Henry's Case in New South Wales[1999] NSWCCA 111; , (1999) 46 NSWLR 346, the court did say there, paragraph 174:

Drug addiction is one of the circumstances of a particular offence that is relevant to the sentencing exercise. It may, for example, be pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case.

KIRBY J: I find that surprising myself.

MR JOHNSON: But there is a statement confirmed in this decision that drug addiction is a circumstance relevant to the sentencing exercise "but is not, of itself, a mitigating factor" - paragraphs 174, 193, 194, 276 of that judgment, paragraph 3 of the headnotes. So - - -

KIRBY J: The case in Ontario is Reg v Stuckless (1998) 17 CR (5th) 330 and there have been a number of other cases in Canada where they have had problems in sentencing similar to those that we have had in Australia where the courts have looked at this issue. I do not admit to really understanding exactly what the Canadians have done, but I intend to look at it.

HAYNE J: Can I understand what the evidentiary base was before the trial judge. Page 206 at lines 10 to 20, there is said to have been some psychiatric and psychological material placed before the sentencing judge which he disposes of by saying that:

there is nothing relevant in his past -

that is, the offender's past -

to his commission of the subject offences.

Was there any material before the sentencing judge which you would point to as identifying how it was or what it was personal to this offender that led him to this course of offending over a long period?

MR JOHNSON: There was a diagnosis that he was a paedophile which appears - - -

KIRBY J: Was that by a psychiatrist?

MR JOHNSON: Yes, Dr Westmore. There are two reports of Dr Westmore, the first at page 151 of the appeal book. This was a report tendered in the proceedings before Judge Rummery dated 9 May 1996.

KIRBY J: Was that placed before the second judge?

MR JOHNSON: Yes, it was part of the material, and there was a further report from Dr Westmore at page 172 of the appeal book. This was the report dated 1 May 1997. Dr Westmore remains of the opinion that he is a paedophile and he refers to some aspects of the appellant's background, refers to, in effect - he says at page 156 at line 16:

He would meet the diagnostic criteria for the condition, paedophilia in that his sexual inclinations are exclusively towards prepubescent children.

There was also, in each case, a report from a Mr Brian Gray, a psychologist. The first is at page 158. That is the report of 20 May 1996. The second is the report of 5 July 1997 which is at pages 177 and 178. If I could indicate that at page 177 the photocopies in the appeal book have chopped off the right-hand side of the page and if I could hand up substitute pages 177. Both the psychiatrist and the psychologist speak in terms of "paedophilia behaviour" and the latter reports deal with issues of prognosis but both involve some history of the offender and some context in which his offending can be understood and considered. There was that material before Judge Nield.

KIRBY J: Had the complainant whose complaints brought him before Judge Rummery made complaints earlier about his behaviour which were fobbed off or were there complaints proximate to the time that he came before Judge Rummery? In short, when was the first complaint about his conduct made?

MR JOHNSON: The first time - there is a reference in Judge Rummery's judgment to - at page 38 there was some complaints in about 1975. It is at line 45 at page 38

KIRBY J: So he complained to the school principal and was not believed, and then the appellant was moved to another parish.

MR JOHNSON: He was then, apparently - he went to Melbourne to get some counselling or therapy. That is referred to by Judge Rummery further at pages 40 and 41. It would seem that the person to whom he was sent for the therapy was a Father Peter Evans, who was a psychologist or psychiatrist. This is at page 40 of the appeal book. But it seems that Father Evans was about to leave the clergy and he saw the appellant once only.

The appellant then stayed in Melbourne for a period attending a course at an institute and then returned to the Maitland Diocese and went to Newcastle. That is at lines 15 to 20 on page 40. So, the matter came to light in that way at that time but it does not seem that it was referred to police and it was in 1995, I think. His Honour Judge Rummery again provided some indication of how the matters came to light. Page 39, line 10:

The victim in the offences in counts 7 to 11, when interviewed by police at Newcastle on 17 October -

I am sorry, page 38, at line 25:

The matter first came to the attention of the authorities as a result of the victim of the offences in counts 2, 3, 4 meeting the victim of the offence in count 5 at a funeral.

That, it is understood, was some time in 1995. That seems to be the way in which complaints came forward. Then, in October 1995, after the appellant's arrest on the first batch of charges, Mr G heard of this and then Mr G - - -

KIRBY J: Perhaps his name should not be used.

MR JOHNSON: Yes. Perhaps I should that in the court below there were non-publication orders with respect to all the names of the complainants. I do not know if this Court would seek to confirm such an approach but that was done in the District Court. I think the judgment of the Court of Criminal Appeal did not refer to the victims by name. I will refrain from doing so from now on. In October 1995 - and this is effectively summarised at paragraph 28, 29 and 30 of the appellant's submissions - the particular victim who was one of the three who were known victims for the purpose of the sentencing proceedings before Judge Nield, spoke to the appellant. He said:

`Do the cops know about us'?"

The appellant said:

`No'."

The victim said:

`Good that's the way I want it to stay. There's no way I'm gunna talk to the cops. Keep that to yourself."

Then the victim said:

"Basically we talked alone and I consolidated his silence in relation to myself and -

the other victim, Mr B:

He [Appellant] also offered to come forward and accept charges for assaults against us.

He said, `Look if you like I'll come forward and own up for what I've done to you and -

Mr B:

I really cared about you guys.

That was about it -

Now, that was a matter that was in evidence before Judge Nield. It was the subject of submissions with respect to the Ellis issue. It provided some explanation as to why some of these disclosures were not made to the authorities prior to the sentence before Judge Rummery but it also disclosed a willingness on the part of the appellant to come forward and admit these matters at that time but he was dissuaded from doing so.

In so far as the Crown has raised issues of motivation with respect to this disclosure, it is appropriate to put the disclosures in context. In so far as the Crown points to one aspect of what the appellant said in the record of interview with the police, it is submitted that it is appropriate, again, to put these disclosures in context. Page 121 of the appeal book, the appellant, in a record of interview, line 34, the police officer says:

What I propose to do now is before the interview through your solicitor expressed that you wished to tell us about a number of things. What I'm basically gunna let you do is just have an open forum -

Then the appellant goes on to say, at line 48:

Well, first I should explain why I, I didn't mention these things before and it's because at, at the time these events happened, as strange as it may seem, I didn't comprehend I was doing harm. I know you can't understand. But the whole thing's been lucky in the sense that I had all these months with the psychologist and the worst day I ever had with the psychologist was the day that he helped me.

At line 17:

The day he got me to understand that I'm gunna hurt them.

At line 44, he said, on page 122:

And so before I said nothing about these things because I thought since I've already hurt them, why should I now interfere with their lives. It's up to them.

Now, this is an interview in August 1996, and it is clearly a reference back to the conversation he had had with Mr G - if I could use that term - in October 1995. Indeed, the police officer, at page 123, takes the appellant to that, and the police officer says:

I think also for the record indicated in the statement of Mr G that he states that he did approach you after you were arrested at Taree and asked you not to mention anything that happened between the two of you.

Then the appellant goes on to explain his position. At line 24 he says:

So I, I thought all the time up till I spoke to Gerard yesterday -

that is a reference to his solicitor -

probably the best was just to let `em come forward. But this could happen the rest of me life and I couldn't put up with that. So I'd like to mention the incidents as best I recall them as far back as I can remember.

Starting in Maitland -

and he goes on for 20 pages to admit a whole lot of offences and victims.

Now, there was no reference to those matters in the judgment of Judge Nield, that is on the motivation issue. The Crown raises it here. It is submitted that there are particular aspects with respect to this issue that confirm that his Honour did not apply the correct principle, because to apply the correct principle involved, firstly, stating it correctly and, secondly, engaging in an examination that looked at the history of disclosure of these matters. His Honour has not undertaken that task when it was a very major factor advanced on behalf of the appellant on sentence, as the transcript of submissions in the District Court, at first instance, would make clear. There is a transcript of the submissions on sentence commencing at page 18 of the appeal book, and it is apparent that this was a very major part of the appellant's case.

The appellant submits that there is an error in principle. It is identifiable in the judgment. It is not just a matter of his Honour referring to the issue of co-operation and volunteering of crime and referring to the giving of a so-called discount in punishment. It is, in my submission, something that shows an error in principle of the House v The King type that involves the setting aside of the sentence on that ground alone. The approach of the Court of Criminal Appeal, it is submitted, at page 224 effectively just confirms the approach taken by his Honour.

The Court of Criminal Appeal at page 222, firstly, referred at line 50 to the appellant making admissions. The Court of Criminal Appeal refers to the appellant, saying it was probably best to let the victims come forward. That was a matter the Court of Criminal Appeal referred to but not his Honour Justice Neild. But this was done to put in context the submission made with respect to the Ellis issue. The court then referred to a number of cases, including Ellis, and set out a portion of his Honour Judge Nield's judgment and then, at page 224, at line 33 said:

It is clear that the learned judge took into account in favour of the appellant his disclosure of offences which were not otherwise known to the authorities, and gave him credit for that.

Now, that, it is submitted, in a sense does not advance the position. It confirms that the Court of Criminal Appeal effectively acknowledged, or asserted, or agreed with the approach taken by Judge Nield.

Discounting punishment is not the principle, it is submitted. This is not a matter of merely being a fact to be taken into account and a matter the weight of which was for the trial judge and is not a matter to be looked at further. This is a very powerful factor which itself has a principle attached to it and that principle must be applied so that the court can be satisfied that the appellant has been sentenced according to law. Now, in my submission, the error in principle is manifested in a number of respects with respect for that matter.

If I could move to the second aspect, and that relates to the question of character. The appellant submits at the outset that sentencing involves an assessment of a person in general. This includes, for example, an assessment of the person's prospects of rehabilitation. This must have regard to both good and bad aspects of an offender. That in turn can only be considered by reference to what the person has done. The sentencing judge cannot in some way divine the character of a person standing for sentence before a criminal court. The judge must look at the evidence to determine what the person has done.

It is submitted that the question of character, in so far as it relates to sentence, involves different considerations to character when looked at in the context of a trial. This Court in Melbourne looked at good character and observed in a number of respects the somewhat inflexible and one-dimensional approach the character which is flowing from the authorities with respect to good character in a trial. But that is not the type of evidence or material or issue with respect to character that is relevant to sentence, nor is it the type of test of good character which is considered in determining whether a person is fit to be a member of a profession or to remain a member of a profession. There the question is: is the person of good character to be a member of that profession?

The question of the subjective circumstances of an offender involve not just an assessment in simplistic terms as to whether that offender is a good or bad person, but an examination and an appropriate weighing of the acts of that person which can involve both good and bad aspects. It is submitted that one cannot deal with character, the character of a human being, in absolute terms. No one person is all good or all bad. In Melbourne's Case, albeit in the context of good character directions in the context of a trial, this Court observed that there were some inflexible aspects or perhaps aspects of the concept of character which were not necessarily in accord with ordinary understanding of how human beings live and operate.

KIRBY J: What is this case?

MR JOHNSON: This is Melbourne v The Queen. If I could take the Court to a number of paragraph references. In the judgment of Justice McHugh in paragraph [34] he said:

In the criminal field, the common law has also tended to treat people as one-dimensional personalities who have either good or bad characters or dispositions. This tendency has been checked in the field of defamation, where the issue is reputation and not character.....the tendency continues to prevail in the criminal law, where a person is regarded as having either a good character or a bad character.

Now, these are all comments in the context of authorities relating to trial, not sentence. Sentence was not an issue in Melbourne.

KIRBY J: Can one examine what Judge Nield said here as bearing out Justice McHugh's statement, that when Judge Nield had to categorise your client using the one-dimensional approach of the criminal law he said, "The facts speak for themselves. This is a man of bad character."

MR JOHNSON: The submission that we put is that that is not the law as it applies to the assessment of evidence concerning an offender on sentence. The one dimensional aspect of good character and bad character is something that appears to flow from cases relevant to directions as to character at trial, but there is no authority saying that those concepts apply to the assessment of a person standing for sentence. Indeed, it would be odd if that were so because it would lead, ultimately, to a situation where if one had a person who had done substantial good work but had committed serious offences and those serious offences would stand in the way of a positive finding of good character, then that person is confined to the bad character category so that any evidence of positive works that showed positive or good aspects of the personality of the person would be effectively sidelined.

That is what has happened here, it is submitted. To determine the merit of a person for the purpose of sentencing, it is submitted that one looks at what the person has done. That involves looking at both the offences which involve bad conduct, but also good works which may show aspects of the person's personality or character which are positive.

McHUGH J: The difficulty from your point of view is the approach in the Canadian cases. The Ontario cases and the British Columbia cases seem to regard the abuse of trust by a priest in sexually abusing a child as generally destroying any credit he might otherwise have received by reason of his good works and good character. The view is that he has used his position as a parish priest to create a situation where he can exploit children and where there are numerous offences he appears to get very little, if any, credit, in some of the Canadian cases.

MR JOHNSON: If there is a situation where it could be found that a particular person set up a situation, for example, they embarked upon entering into the Guides or the Scouts, or some other organisation, with the purpose of exploiting young members of that organisation, then one may end up with a situation where the good works that might be sought to be taken into account were completely overwhelmed or neutralised, if I could use that term, because the good works were part of a process of obtaining access to victims.

KIRBY J: Well, I rather took paragraph 23 of the Crown's submissions to be saying something like:

The necessity for the appellant to be a good priest went hand in hand with his obvious desire to continue the inappropriate sexual contacts he was having with young children.

So, that is what the Crown - - -

MR JOHNSON: It is submitted that that is not what the evidence disclosed here. This man was apparently a person who was a paedophile. There is no evidence that he joined the priesthood for the purpose of obtaining access to young boys. He lived for many years as a priest. He did much good work, as the evidence disclosed, in areas quite unrelated to boys - the dead, or those who were dying, the ill, matters of that sort.

HAYNE J: What use do you say a sentencer should make of that conclusion, that this man has comforted many in the course of the performance of his priestly duties? Let it be assumed that that is the finding of fact. What then does the sentencer conclude from that fact?

MR JOHNSON: The sentencer would say "I have before me a human being, not black or white, good or bad, but a human being with good and bad aspects, with frailties that are manifest, standing for sentence. I must have regard to a number of factors, including questions of reformation and rehabilitation. I can see that this person, in one aspect of his life, has committed very serious crimes, but I can see that in other aspects of his life he has demonstrated, not just some sort of practical ability to perform a task, but that he has demonstrated positive aspects of his personality, caring aspects; aspects of humanity which point to the fact that, in sentencing this human being, in engaging in the intuitive process of sentencing that involves taking into account all matters relevant to a particular offender, one has before you a person where there is a balancing exercise to be undertaken, and where those matters can be put in the balance in his favour."

Now, one clearly has the breach of trust there as a significant factor. In fact, that is a dominant factor on the objective side. One of the things that comes out of the cases is that the objective criminality is serious because of the breach of trust. But does that mean that when one moves to the subjective side, that the breach of trust aspect comes in again to completely knock out of the ring positive works of the offender, which are not involving children, which are not open to a finding that he manipulated a situation to get exposure to children. T hose are matters which can be taken into account in determining, firstly, what weight subjectively can be given to this man's personality standing for sentence, and, then, how does that relate to aspects of reformation and rehabilitation to which - - -

HAYNE J: Does it, in any respect, modify, qualify the gravity of what he did?

MR JOHNSON: What it does is allow, in my submission, some leniency to be extended to him because he is a person who has demonstrated a capacity to perform good works, demonstrating positive aspects of his personality, humanity, and those matters can be taken into account to provide the foundation for some leniency. That is the process. The process involves not looking at him and saying, "He has done terrible things. Some people say he has done some very good things, but I think he is a bad man" - and this is what Judge Nield did - "I think he is a bad man; I see no good in him whatsoever, and therefore I exclude these matters from consideration totally".

HAYNE J: But he stands for sentence for his conduct.

MR JOHNSON: Yes.

HAYNE J: He is to be sentenced for that. He is not, for example, to have his sentence increased, is he, if he had committed other crime?

GUMMOW J: Or other disreputable, non-criminal conduct?

HAYNE J: Let it be assumed that he was seen carousing and bringing the priesthood into disrepute by being an apparently dissolute character, no crime in it, do you increase the sentence because of that? Do you increase the sentence, say, because he was inattentive to his other priestly duties?

MR JOHNSON: No.

HAYNE J: People called him when they were dying and, "No, I am not going anywhere near them". What is the process that has been undertaken, do you say?

MR JOHNSON: The process is to put into the one balance - - -

GUMMOW J: What is the balance? What is being struck?

MR JOHNSON: One is engaging in what has been described in the authorities as an intuitive process whereby one is not working out, firstly, what the objective criminality is and saying, "That is worth X, and then the subjective circumstances leads to a discount of Y". That has been rejected as an approach in Pearce and by this Court in AB. But what one has here is all the objective and subjective factors being taken into account. My submission is - - -

GUMMOW J: What is it that makes something a factor?

MR JOHNSON: If there is some evidence that bears upon the matter that is before the Court, and it is a matter that is relevant to the sentencing process - - -

GUMMOW J: You just keep going around and around. What makes it relevant to the sentencing process?

MR JOHNSON: If it relates to the offender. The court is sentencing a person for a crime and the court - - -

McHUGH J: What is it exactly that you say the judge has disregarded? Is it his good works? That is not what the judge says. The judge's language is very carefully chosen. At 206, line 45 what he says is:

His unblemished character and reputation does not entitle him to any leniency -

Is the judge saying any more than the fact, "Well, to all outward appearances he's been a man of unblemished character and reputation but having regard to the fact that these offences were committed between 1972 and 1993 I'm not going to take the bare fact of his unblemished character and reputation into account"? The judge has not said, "I won't take into account that he has served here, he's done this or done that". Earlier he had spoken about his capacity as a priest.

MR JOHNSON: At page 204 his Honour referred to the references and said at line 19:

I appreciate that, to other priests, and to others within his congregation, the prisoner was a good man who did positive things and who achieved much. This is shown by the nine testimonials provided to his Honour Judge Rummery, part of exhibit 1A and the nine testimonials provided to me, part of exhibit 1B. But whatever he had done and achieved, he is not a good man. The prisoner is a man who preyed upon the young, the vulnerable, the impressionable, the child needing a friend or a father figure and the child seeking approval from an adult. And for what? For his own sexual gratification, without thought or concern for the feelings or the sexual development of his victims. How can a man, who showed a kind and friendly face to adults, but who sexually abused so many young boys in so many ways over such a long period of time, be considered to be a good man? I accept that to some people there is good in everyone, but I cannot see any good in the prisoner.

Now, his Honour is looking at this in a one-dimensional way in terms of good or bad. What is submitted is that his Honour is erring in excluding from consideration evidence not just of what other people thought of him but evidence of works done by him. This is not just a reputation case, this is a case where they speak of things that they observed themselves that he was doing. His Honour says, "I cannot see any good in the prisoner." Now, it is submitted that if that approach was correct then a large number of persons before the courts daily would be in a similar position, effectively of being said to be beyond reformation or redemption.

His Honour has approached the matter upon the basis that the appellant was a bad man with no good in him at all and was beyond redemption. That is essentially what his Honour said, and this involved - - -

KIRBY J: I may have forgotten all about this, but I sat in the Court of Criminal Appeal for years and you read of people dredging the bottom of the barrel of tiny little works that people have done over their life. Please tell me if I am wrong, but I thought it is commonplace that in sentencing you have the so-called objective facts and then you have the so-called subjective facts, an expression I never use myself, but that it is not uncommon to get a whole series of little good works that a person has done, which is supposed to be put into the thinking towards the intuitive judgment.

MR JOHNSON: Indeed, and - - -

HAYNE J: Often enough because those good works will reveal that this was the true momentary slip from grace, not the course of calculated conduct continued after the wrongdoing had been drawn to the attention of the offender. He had been advised to get treatment. He sought it and then continued to offend.

MR JOHNSON: That does not mean, in my submission, that one ignores the evidence of good work, because what one is doing then is saying, one has perhaps someone with a bad record for break, enter and steal, at the age of 30; but that person is demonstrating positive aspects of they are a good worker, does that mean that that person then, coming for sentence, a judge says, "You are bad"?

HAYNE J: It means that by age 30 you are usually finding the offender is at the watershed and is about to turn, and often enough, come age 28, 30, it is the last you will see of them.

MR JOHNSON: That involves - but on the approach that his Honour took here, the offender in the example posited and being the subject of present discussion, is branded "bad". Now, does that mean that there is no incentive to rehabilitate for that person? The fact that this prisoner comes before the court does not mean - if his Honour is right in this approach, one is dealing with this in a very inflexible, one dimensional way that does not accord with the frailties of human beings, and human beings who, by definition, have committed crimes, which is why they are before a court for sentence.

Now, what I would submit to the Court is the only way that the Court can engage in the intuitive process which involves balancing of factors, including some factors that are not necessarily consistent - as was said in Rushby and by this Court in AB - is to have regard to the good and the bad. It is not to have regard to the good and the bad for the purpose of deciding whether he is good on the one hand or bad on the other. It is for the purpose of determining what weight can be given to positive evidence of good works done by an offender, firstly, to extend some leniency to him with respect to sentence and, secondly, to provide some insight with respect to reformation and rehabilitation. That is a matter of some significance here because the evidence before his Honour Judge Nield indicated that this offender had acquired a degree of insight. Mr Gray at page 178 referred to this when talking about prognosis, the admissions of all his offences, the increasing insight into his conduct and the reasons for it.

McHUGH J: There is also evidence in some of the testimonials that people who visited him in prison used to say he told them how much harm he had done and asked them to pray for his victims.

MR JOHNSON: What one has, in my submission, is an unnecessary exclusion, or an inappropriate exclusion of this evidence, which was available and required to be taken into account as part of the intuitive sentencing process but which his Honour Judge Nield sought to deal with in the way that involved a classification of good or bad. In a sense, one can look at what was said in Rushby about the need to approach these issues with cool reason and detachment. These were very serious crimes, there is no doubt about that, but at the end of the day, the appellant was to be dealt with in accordance with principle and, in my submission, there have been errors of principle in the way in which he was dealt with.

I would submit that his position in relation to character discloses this error. If one took, perhaps, an example away from the clergy - if one had a doctor who went to isolated communities providing considerable assistance to persons, demonstrating a commitment to his work, but he happened to be a paedophile and he happened on those occasions, from time to time, to sexually exploit young persons who were at those towns, now, unless one could make a positive finding that he actually embarked upon this whole process solely for the purpose of exploiting young children, in my submission, he would stand for sentence as a person with undoubted serious crimes involving elements of breach of trust, but where the work that he had done to the communities that he served would be, as a matter of principle, to be taken into account.

In my submission, there is no difference in principle here because of the particular calling of the offender. The authorities which have been referred to by the Crown and, indeed, in the appellant's written submissions have made clear that at the end of the day there may be less weight given to evidence of character where there are breaches of trust, but there is no authority, in my submission, to indicate that they are totally excluded. It would be inconsistent with the principled approach to sentencing of an offender to exclude those factors entirely.

So it is submitted that there was evidence. It went beyond just evidence of reputation. It was evidence of positive good works. It provided insight in relation to the prisoner. It was material which he was entitled to have taken into account on his behalf. There was error in principle on the part of Judge Nield in not doing that.

The Court of Criminal Appeal, it is submitted, has dealt with the matter also in an erroneous fashion. At page 225 of the appeal book at line 45 the court said:

One of the complaints that is made on behalf of the appellant by senior counsel is that Nield DCJ erred in not giving the appellant credit in the sentencing process for his good works in pursuit of his priestly vocation, and for the good character and reputation which he had established as a result of his pastoral activities over many years.

In a circumstance where the essence of the criminality of the conduct of an offender is abuse of a position of trust, it is ordinarily not of great assistance to the offender to observe that he occupied a position of trust. The offences committed by the present appellant were only made possible by the trust that was reposed in him in connection with the pursuit of his priestly vocation. I agree with Nield DCJ, that, in the circumstances of the present case, the high reputation previously enjoyed by the appellant in the community, the trust and confidence reposed in him by parents and by church authorities, and the effective performance by him of certain important aspects of his vocation, were not themselves matters which warranted the extension of significant leniency when it came to punishing him for the offences to which he pleaded guilty.

McHUGH J: Your point is that the judge gave no leniency whatever.

MR JOHNSON: And, indeed, the court, at 225 line 45, noted one of the complaints that is made is that his Honour Judge Nield:

erred in not giving the appellant credit -

So, the point in the Court of Criminal Appeal was that his Honour extended no leniency with respect to this material. The Court of Criminal Appeal has spoken in terms of significant leniency which is not what his Honour found and it is submitted that that is a clear error.

McHUGH J: I think we understand your point.

MR JOHNSON: Thank you.

HAYNE J: Can I just ask you to comment upon three hypotheticals together? A priest who, over this period of time, engages in this conduct; a schoolmaster who, over this period of time, engages in like conduct and the process worker who, by dint of persuasion rather than anything else, is able to engage in this kind of conduct over this time. Are all three to be dealt with similarly or is the priest, if a good priest, to be dealt with more leniently than the other two?

MR JOHNSON: The third example, the process worker, on the facts propounded by your Honour there is no sign of breach of trust. It is not made clear how he gets access to the children but if he walks out on the street - - -

HAYNE J: By dint of persuasion.

MR JOHNSON: Yes. Then the breach of trust aspect is, if these are strangers, although unpalatable as crimes, in a somewhat different category to the first and second. The priest and teacher, the authorities make clear there is an element of breach of trust which is an aggravating feature and that makes clear the seriousness or aggravates the crime.

HAYNE J: And thus is the comparison you seek to draw the comparison between the good and attentive priest and the bad and sloppy priest? Is that the comparison that underlies your submissions?

MR JOHNSON: No, I would submit that the - perhaps if I could put it this way. If there was no evidence at all about what the priest did as to his works, one is left in the position that one has serious objective facts and one could not say that there is any subject material of that type to be placed in the scales entitling him to a degree of leniency. But where you have evidence which shows works of this type - and it is not just a matter of turning up and saying mass and that sort of thing - - -

HAYNE J: Oh, no, I understand that.

MR JOHNSON: It goes far beyond that. One has positive evidence of good works, throwing light upon the personality of the offender, an aspect which entitles him to leniency, the degree of which will depend upon the view of the sentencing judge. But it is material, it must be taken into account. So, if I could seek to answer it in that way.

KIRBY J: Could I just ask for your help on this: in Ellis there is the statement about "significant discount" or words to that effect. Has there been formulated any darg or any principle? I mean there are, as I dimly recollect, principles which govern pleas of guilty and assistance to authorities. There are even quasi-mathematical suggestions that you take into account, also bearing in mind when the confession was made with relation to the trial. Has there been any suggestion in how Ellis is to be applied in practice? What sort of thing are we looking at in this case?

MR JOHNSON: There is no mathematical extrapolation, as far as I know, your Honour. What one finds is the application of the Ellis principle, and that, in my submission, is the significant added element of leniency in other cases, and in AB in this Court, although the term used was not "significant added element of leniency", it was, as the appellant's written submissions indicate at paragraph 27, "considerable leniency", "special leniency" to ways in which this Court expressed the position in AB. There are references at paragraph 27 of the appellant's written submissions to that.

It is of note in itself that in AB the sentencing judge himself said in a passage quoted at paragraph 10 of the judgment - the sentencing judge at first instance there said:

That misconduct, with one possible exception, would fairly clearly not have come to light had the prisoner not made these volunteered admissions and he is entitled, accordingly, to have his sentence on those matters discounted generally in accordance with the principles enunciated in R v Ellis.

At least in AB the sentencing judge went through a process of assessing whether the crimes would have come to light and then spoke of discounting generously. Now, I would submit that if his Honour Judge Nield had approached this case in some way that involved the application of the Ellis principle, at least the statement of them in the application, the position would have been a more difficult one for the appellant. But it is submitted that the appellant in this case starts off with a non-application of the principle. The principle is not one that just speaks of a discount or matters of that sort.

KIRBY J: Well, you have answered my question, thank you.

McHUGH J: Yes, Mr Blackmore.

MR BLACKMORE: Your Honour, if I can deal fairly quickly with the first ground, the Ellis ground. If I can just remind the Court of a particular passage in Ellis 6 NSWLR 603, and it is the passage that your Honour the presiding Judge referred to. It proceeds at point E - I will not read it all, that whole paragraph - but it proceeds to say the sentence:

will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.

Here, clearly the applicant himself - the appellant himself - recognised this possibility because that was the motivation, and that was the reason for referring to his motivation in coming forward, he recognised that it was quite possible - quite likely - that, at least, some, if not all, of these other complainants could come forward, subsequently.

KIRBY J: I think that makes the point that his motivation was not entirely pure. That it was, in a sense, no doubt, something to get a weight off his mind, but it was also to prevent him having to come back each time and, no doubt, be additionally punished because of the fact that he had not revealed it when he had the opportunity to do it. But as we now know, and as the judge knew, a number of the victims did not make a statement or could not be found and, therefore, the fact is that his revelation of their cases, for which he was punished, would not have been before the Court.

MR BLACKMORE: It was not that he did not get a discount, in a sense. It affected the degree of the discount, perhaps - the significance of it, perhaps. But he is not to know that, subsequently, with the publicity in relation to this matter, that some of these other complainants would not come forward. That was clearly what was motivating him. And in Ellis it is recognised that it is a factor that you have to take into consideration in providing a discount. Coming to this case itself, what has to be determined is whether or not the Court of Criminal Appeal was in error, as Justice Gummow said right at the beginning. In relation to the Ellis point, the Court of Criminal Appeal held, and this is extracted in the written submissions of the respondent at paragraph 8:

it "is clear that the learned judge took into account in favour of the appellant his disclosure of offences which were not otherwise known to the authorities and gave him credit for that."

KIRBY J: It gave him credit, but that is not quite what Ellis says. Ellis, as I read it, says you have to give "substantial credit".

MR BLACKMORE: Your Honour, with respect, that was the way I just read the passage from Ellis. It is not necessarily a substantial. It is a discount that has to be identified and, with respect, that is precisely what the trial judge did here. He, initially, at page 207 identifies a discrete discount, that he is going to apply for this factor - this factor alone. Any discount in terms of sentence is going to be significant. He identifies that. And at page 209, and I will not go to the passages, your Honours have already looked at them, he then applies the discount in the sentence. And, with respect, that is all that has to be done - in a shorthand way, in the sense of reducing a sentence of judgement that is understandable and is correct in principle.

CALLINAN J: What was that later reference, I am sorry?

MR BLACKMORE: At page 209 of the appeal book.

CALLINAN J: What line was that?

MR BLACKMORE: Again, that is referred to in our submissions at paragraph 7.

CALLINAN J: But whereabouts on page 209?

MR BLACKMORE: 209 at lines 5 to 20.

KIRBY J: Does he identify what he would have given?

MR BLACKMORE: No, not at all.

KIRBY J: And what he had discounted it to, or - - -

MR BLACKMORE: No, and as his Honour, then the Chief Justice in New South Wales said, that would have been contra to authority in New South Wales to do so, to identify a specific discount by percentage.

KIRBY J: Am I remembering things wrongly or do they not have some sort of a level in pleas of guilty and - not that there is a case - - -

MR BLACKMORE: Not in terms of percentages they do not at this stage. Now, there is some jurisprudence about this in New South Wales. In the Court of Criminal Appeal there is a - - -

McHUGH J: Like in Gallagher's Case - a case like that, was it not?

MR BLACKMORE: Yes.

KIRBY J: I thought it was one-third or something like that that you got off.

MR BLACKMORE: There is a guideline judgment in relation to discount.

GUMMOW J: You do not have to dignify it as jurisprudence.

MR BLACKMORE: Perhaps that was a loose term. In relation to pleas of guilty in section 439 which is before Court now and it may result in there being in relation to pleas of guilty an identifiable discount. That is not an identifiable discount, though, relative to the Ellis principle, if I could put it that way, if we can call that a principle at all, or a factor. It is certainly something that would be taken into consideration in determining whether or not there should be a discount. Now, really, that is all that I wanted to say in relation to that first ground. I obviously rely on the - - -

KIRBY J: Have you looked at any of the overseas cases because this is a problem which has presented to a lot of the courts in the United States, Canada and England, I suppose.

MR BLACKMORE: Your Honour mentioned a case of Stuckless. We did in fact look at that case. I have a copy of it here. It is certainly not as clear a proposition as your Honour may have suggested it was. I am not being critical in any respect. I understand that you were simply quoting from memory, but - - -

CALLINAN J: What is the rationale for not identifying the quantum of the discount?

MR BLACKMORE: The rationale for not doing so - because it leads to inconsistencies in sentencing. Some judges will identify a particular discount and it leads to regimentation in sentencing so that - - -

CALLINAN J: Why is that so? I mean, discount - - -

MR BLACKMORE: I am only giving you one side of the argument. In fact, the Director, in relation to section 439, argued that you could provide a quantified discount - - -

CALLINAN J: I am sorry?

MR BLACKMORE: The Director in New South Wales, a different guise from myself, but argued before the Court of Criminal Appeal that it was possible to identify a specific discount in relation to pleas of guilty.

KIRBY J: This 439 is New South Wales - - -

MR BLACKMORE: New South Wales legislation, I am sorry - - -

KIRBY J: Is that section 439 of the Crimes Act, is it?

MR BLACKMORE: Yes.

KIRBY J: And that has a specific direction in relation to pleas of guilty.

MR BLACKMORE: Yes. There is certainly two sides to the argument and that is one of them. It leads to appeals based upon - "I got 5 per cent and he got 6 per cent", is another example of those inconsistencies.

CALLINAN J: You can equally have appeals on all sorts of different factors.

MR BLACKMORE: Well, you could.

CALLINAN J: I just do not follow that.

MR BLACKMORE: Well, I am only giving the arguments - - -

CALLINAN J: Yes, I know.

MR BLACKMORE: I am not suggesting that they are necessarily conclusive arguments either way.

McHUGH J: It really involves what I criticised in AB as the two-tier sentence approach which I think is inconsistent with what this Court's approach in Veen was, that you have a sentencing discretion, one has to weigh up a lot of factors.

MR BLACKMORE: It overly subscribes factors into precise figures which - - -

HAYNE J: It turns it into a mechanistic process which it is not.

MR BLACKMORE: Exactly, which is what your Honour, with other judges in Victoria - we are talking about in Storey's Case. But it is an intuitive process and you have to sentence the person. I do not think either of the parties here are at odds in relation to this aspect of sentencing but you have to sentence the person before the court.

HAYNE J: For the conduct.

MR BLACKMORE: For the conduct, and the first thing you determine is the conduct, the objective nature of the conduct, and the community condemns that particular conduct for what it is. Then you look at the person and decide, in the circumstances of the case, what does this person require as a sentence? Parsimony is another principle that has to be considered in the sense that you attempt to make the sentence at the lower end of what is appropriate for the criminality on the one hand, and this person on the other.

The case of Stuckless is reported at 17 CR (5th) 330. With respect, I perhaps do not have time to take your Honours to it in any detail but at page 347 there is a passage there in relation to dealing with paedophilia. It does say this:

Paedophilia is an explanation, not a defence. Society is entitled to protection no less from pedophiles than from those who sexually abuse children without this tendency-

McHUGH J: That is from Judge Abella. She dissented in that case, did she not, or am I wrong?

MR BLACKMORE: No, not in this case. According to the headnote, in fact, all of the judges were in concurrence in this case.

KIRBY J: There are a couple of other cases in Canada, Reg v Diega and Bennett which were cases concerning priests. Have you looked at those?

MR BLACKMORE: With respect, no, your Honour. I have not looked at those in detail.

KIRBY J: There have been a few Law Review articles too, in Canada.

MR BLACKMORE: Yes.

KIRBY J: Martin in Alberta Law Review (1994). This is an issue that has arisen in a lot of jurisdictions. Do you know, from your experience, Mr Blackmore, of, take schizophrenia, if a person commits multiple offences under the influence of schizophrenia, would that not be a matter that you would take into account in, as it were, recognising that the individual offences are aspects of or physical manifestations acting out of the underlying schizophrenia.

MR BLACKMORE: You take it into consideration because of the element of public deterrence. It does not apply to that person because you are dealing with somebody who has an identifiable mental illness. Paedophilia is not in that category.

KIRBY J: Why?

MR BLACKMORE: It is not somebody who has some disease that causes him to act in this way.

KIRBY J: Is that so? Was that demonstrated by the medical evidence here?

MR BLACKMORE: He was certainly said to be a paedophile but I do not understand that to be any sort of medical condition as such and it is certainly not treated that way any more than - - -

KIRBY J: Is this not a person with a sexual fantasy which is fixed and very difficult to change which is directed towards children, either male or female children?

McHUGH J: The evidence in this case suggests that in his case he could be reformed, that he would not offend again.

MR BLACKMORE: Yes.

HAYNE J: If there is an underlying condition, what, if any, effect does that have on considerations of community protection which are, I think, another recognised and identifiable sentencing consideration?

MR BLACKMORE: Of course, I mean, again, that is part of the balance. A paedophile who is untreated - this man, apparently there was evidence that he was being treated and could possibly be treated successfully - is somebody who almost certainly would repeat his offences, and this is where the balance must be applied in terms of considering this sentence.

KIRBY J: I am not being critical of anybody, but if, in 1975, his case had been handled more effectively, one might say, then it may be that all these later victims might have been spared and he might have, in a sense, been spared.

MR BLACKMORE: That is undoubtedly so, but on the other, that touches upon the second round as well about his good character. He would not have had the opportunity to have good character, in the way in which it has developed and been developed in this Court.

Perhaps I can move on to that second ground. Had he at that stage confessed his crime at an early stage, rather than cloaked it as he did in his priesthood and continued to cloak it and lead a secret life throughout those more than 20 years and commit offences throughout that period, then he would have been identified at that stage as a paedophile. Whether he would have been treated, it is unknown, obviously, and he would have no doubt had to leave the priesthood at that point.

With respect, our submission in relation to character is that it is a balancing process, but at the end of the day, the balance must be struck as to whether or not you obtain good character. You do not obtain bad character; no one takes into consideration bad character on sentence. There is no point in talking about being branded as somebody with bad character because it is just not relevant. It may be that one could read into what the judge said that that is what he in fact did, but it is not a relevant consideration that he was of bad character.

KIRBY J: But is it not a problem once you accept, as I think you correctly do, that it is a matter of balancing, the problem is that there are two passages where the judge appears to have taken out entirely, absolutely, completely, the balance that redounds to his favour on so-called subjective factors at pages 204 - - -

MR BLACKMORE: With respect, what he has done is he has struck a balance and arrived at a conclusion that he is not of good character.

KIRBY J: "I see no good in the prisoner". How can one say that of another human being, any human being?

MR BLACKMORE: As I say, that may be the area where he has moved into making a finding which really is not relevant. The question ultimately is: does he have good character? Is he a person who has a disposition of good character? That is when he obtains some benefit from that character. It is not relevant - it must be looked at in the context of this case. Here is a man who has committed these voluntary criminal activities, whether he be a paedophile or otherwise, these are voluntary acts which he has undertaken, it is not suggested anything else here - it could not be legally suggested anything else. Everybody has a choice; he had a choice as to the way he would act. He chose to act in the way he did. He cloaked his activities in the priesthood and he proceeded for more than 20 years to carry out these offences. In the circumstances he has not been dealt - - -

McHUGH J: In one sense that is against you. What we have here is, what, 53 offences in front of this judge and another 22 in front of Judge Rummery. That is a total of 75, but they are spread over 22 years. It is rather like the old divorce cases, the issue of habitual cruelty; people were married for 25 years and one party got in the witness box and gave evidence of 10 or 12 incidents, but there are a lot of other things happened throughout the marriage. Similarly here, over that 22-year period, there are all these goods works, but 75 breaches - there may well have been more, but we do not know about those.

MR BLACKMORE: As a matter of principle, I do not disagree in the sense that if you look at an individual and they have committed certain bad acts even over 20 years, but they have also done good deeds over that 20 years, that is a process then you would balance that process and arrive at a conclusion. And you may arrive at the conclusion that, in fact, he is a person who has good disposition.

McHUGH J: Well, what troubles me here is if the judge had simply said, "He is not a good man" one could accept that because it involves a balancing process, but it is difficult to escape the conclusion that the judge was saying, "Whatever this man has done I will not take it into account in any circumstances".

MR BLACKMORE: At this stage I am back to the same area I was arguing in the leave application. The issue, ultimately, is what is the balance with this man? Does he obtain good character - this is our submission, anyway - that if he obtains good character then you could have it taken into consideration. You could not say, with respect, that the judge was in error here in saying he did not have good character. If he goes on and finds that in fact he was a man with bad character it is irrelevant and it just does not have anything to do with the finding. The question is, is he entitled to some discrete identifiable discount, if you want to call it that, or consideration in relation to his good character.

Here he is not because - at least in our submission you could not disturb his Honour's finding, which is implicit in what he says, surely, that he does not have good character, because even though he may have done some good things - which he does identify, it is not as if he has not considered them, he has seen them and he has looked at them.

KIRBY J: And then rejects them, "I cannot see any good in the prisoner." - "any good".

MR BLACKMORE: Yes, "any good". Well, all we can submit in relation to that is that that is the process of his balance, that is the manifestation, that is his conclusion that he does not see any good, and in a sense, it is a statement which is unnecessary, but - - -

McHUGH J: It is also wrong, is it not?

MR BLACKMORE: But it may not be that wrong in the sense that all he is saying is, "He doesn't have anything I can give him in relation to good character". If you took the other approach and said, "Well, look, he has done things in his life - he has done some terrible things as well, but he has done some good things and we will take the good things into account", that would be an unbalanced approach because it is only good things, good character that is taken into consideration.

McHUGH J: But is there any distinction, in principle, between what he has done on behalf of his parishioners and another priest who perhaps risks his life and health working among lepers, for example? Would such a priest be given the description that this priest was given, no good can be seen in him?

MR BLACKMORE: My junior reminds me, well, it depends on the balance.

McHUGH J: Yes.

MR BLACKMORE: At the end of the day it is hard to define it any more closely than that. You look at the individual.

HAYNE J: Does it depend on the balance or does it depend upon the context in which the statement is being made. To say as a matter of objective fact, "There is no good in this man" is, I would have thought, plainly and undoubtedly wrong. The question before the sentencing judge was, if you like, "Is there any relevant good?"

MR BLACKMORE: I am not necessarily disagreeing with that. What I am saying, implicit in what he says, which may have been unnecessary to say and may, in fact, be wrong, is that I cannot find any good that I can use in his favour on the sentence.

KIRBY J: But does it not suggest, at least I have to tell you it suggests to my mind, suggests, that the judge was getting away from the obligation, which this Court and other appellate courts have said, the need for dispassion in the task of sentencing. Now, these were the kinds of offences that naturally create very strong feelings, but, in a sense, that imposes the obligation especially to be careful and not to be carried away. It is those two passages that are of concern to me, I have to tell you.

MR BLACKMORE: Yes, I understand. I notice that that submission is not necessarily made against the judge here, though, and that is an impression. The question is whether or not, at the end of the day, there is any error in his sentence and whether or not there was any error in the Court of Criminal Appeal's consideration of that sentence.

KIRBY J: When you mention the Court of Criminal Appeal, there seems to be a certain ambivalence in the way it is expressed. It says - page 225 -

MR BLACKMORE: Page 226, I think, your Honour, yes. The words "significant leniency" was the - - -

KIRBY J: Yes, but in the previous page, it says:

erred in not giving the appellant credit in the sentencing process.

MR BLACKMORE: It would have to be accepted that if "significant" there is referring to any, then it is not correct. It was clear that the trial judge did not give him any consideration on his character. The trial judge's conclusion in relation to character is at page 206 at lines 40 to 45:

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.

That was, in fact, his conclusion here and, with respect, we would submit that is correct, or at least it cannot be said to be incorrect, given the nature of the proceedings that we are dealing with.

KIRBY J: Using Justice McHugh's case, to say a priest who spent years working with Aboriginals suffering from glaucoma, but because he is a paedophile, he also commits offences, now, would it be true to say his unblemished character and reputation does not entitle him to any leniency whatsoever, that that is just what you accept of a priest? My recollection is that in the Court of Criminal Appeal, on sentencing, you are constantly given a whole series of little things, often insignificant, that people have done in their lives that are said to redound on the credit side.

MR BLACKMORE: I do not dispute that, but you have to again refer this back to the context of this case. Now, had the priest who had done those works that Justice McHugh referred to committed one act, for example, of paedophilia, had on one occasion given in to his urge, then the balance would be entirely different and you could well say, in relation to him, and it is very important to understand, I think, the distinction here, that that act was out of character. But his acts here were not out of character. They were in his character. This was his character and his character was not good.

KIRBY J: But his character also involved kindness to bereaved people, assistance to parishioners and other - - -

MR BLACKMORE: Well, it is difficult to be sure, with respect. He was a priest.

KIRBY J: I just think this is a very one-dimensional view of character.

MR BLACKMORE: An alternate view is one-dimensional, with respect. If you simply take the good deeds and exclude the bad ones, you do nothing more than give him credit for those without really assessing his character at all because that is what you are entitled to take into consideration. Does he have good character? Therefore, almost everybody would have good character and, yes, it is possible that everybody has a bit of good and evil in them. Anybody can produce some evidence to say, "Well, I have helped some lady across the street and, therefore, even though I am an armed robber and a recidivist" - - -

KIRBY J: Judge Nield did not think there was any good at all.

MR BLACKMORE: - - - "I have done this good deed and I should have it taken into consideration". That is not the balance we are looking for surely. The balance we are looking for is: why are we taking it into consideration? Because it is relevant to dealing with this person and the community understanding this person and how they are going to deal with him. Is he going to re-offend? Are we going to be able to rehabilitate this person? All of those things are relevant when you think about dealing with this individual.

If he commits offences over this length of period of time, recidivist sorts of offences, you are entitled to say these are, in fact, demonstrative of his character. That is all that is being said here. Yes, he may have done other things which demonstrate a contra view but they are also things that are done within the occupation that he was using as a cloak, as a shield, to obtain access to these children.

And that, of itself, was an important consideration here factually in this case. It is not to say that in other cases where somebody is a paedophile, for example, but for other reasons has no access, as I think your Honour Justice Hayne referred to, does not have access to children per se, does not breach trust; does good works separately - nothing to do with children, that on a balancing a process you may arrive at a conclusion that, in fact, he was of good character.

CALLINAN J: Mr Blackmore, can I ask you a question - it is not directly related to character, but on a related sort of matter. It is said here, and correctly, that the person's position, the appellant's position, was able to be exploited for the very crimes that he committed. But take the position of somebody like the appellant or any person in a very prominent position. There is no doubt that the crimes of such a person tend to attract more opprobrium, public humiliation, and the like, than crimes committed by perhaps other people of a similar kind. Should that be taken into account?

MR BLACKMORE: It is, with respect, regularly taken into account, for example, with solicitors and the like. It is - - -

CALLINAN J: Mr Justice Lee in Jackson did not think it should be. He said that the holding of an office may bring distinction but from a point of view of sentence, it is not a matter which can advance the respondent any more than if he had been a hard-working person carrying on a menial occupation. If there is implicit in that, as I suggest, that the prominence of the position is irrelevant, you do not agree with it?

MR BLACKMORE: It depends, with respect, in that case where you are, in fact, using a position to breach trust.

CALLINAN J: As here in this case.

MR BLACKMORE: Yes, then the same considerations apply. If you have a prominent position and your offence has nothing to do with your position, your prominent position - - -

CALLINAN J: But people in that sort of position do attract more opprobrium. You take the case of Mr Alan Bond and the newspapers regularly refer to him in the most disparaging terms and no doubt will continue to do that for years. Mr Justice Pidgeon at first instance, when he sentenced him, thought that sort of matter was relevant and should be taken into account, that it was a punitive factor in itself.

MR BLACKMORE: It is taken into consideration in a related way in respect of, for example, the way in which someone will handle prison. An example is sexual offences are dealt with in prison differently because they do their time harder, if I can use it as simply as that, and, likewise, for certain people in the community. They will do time harder.

CALLINAN J: And it seems that his Honour Judge Nield may have taken into account the way in which the appellant would do his sentence here, but there does not seem to have been any reference to any particular opprobrium or humiliation that this man would suffer in the Catholic church and perhaps in the Catholic community or the community at large.

MR BLACKMORE: With respect, I think it is implicit in what he is saying that that is his position.

CALLINAN J: Is it? Can you draw my attention to it?

MR BLACKMORE: He is talking about "his unblemished character and reputation" as a priest and how he has fallen from that.

CALLINAN J: Well, it is part of the matter that he then discarded.

MR BLACKMORE: I am not sure that I can add much more to that. He has taken into consideration but he does not identify - - -

CALLINAN J: Well, if he discarded unblemished reputation, and you say that is a reference also to the matter to which I have referred, then those matters were also discarded; is that not right?

MR BLACKMORE: Well, he does not make a specific reference to the point that your Honour is making so it is difficult to say. I am really only implying that he has recognised that position.

McHUGH J: Is there anything further that you have to put on this second point, Mr Blackmore?

MR BLACKMORE: In relation to the second point, no, your Honour. We rely, obviously, on our written submission which have already been filed.

McHUGH J: Anything in reply, Mr Johnson?

MR JOHNSON: Very shortly this, your Honours, that so far as the term was used by Justice Hayne "any irrelevant good", the submission of the appellant is that the evidence of good works by this appellant was relevant. To that extent, there was relevant material which his Honour Judge Nield excluded in the finding which has been referred to in submissions.

The only other matter was that in so far as a question was raised about the condition paedophilia, Dr Westmore in his first report at page 156 at line 14, spoke of a diagnostic condition - - -

McHUGH J: Yes, well you read that in-chief.

MR JOHNSON: That is all.

McHUGH J: Thank you. The Court will reserve its decision in this matter.

AT 4.10 PM THE MATTER WAS ADJOURNED