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County Court of Victoria |
Last Updated: 18 July 2019
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Revised
Not Restricted Suitable for Publication |
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – late plea – indecent assault – representative charges – historical sexual offending against children – serious sexual offender – gross breach of trust – high moral culpability – breach of priestly authority – currently serving sentence for similar offending – general deterrence
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:
Sentence: Total effective sentence of 2 years and 10 months’ imprisonment; 15 months to be served cumulative to the sentence imposed by Her Honour Judge Hampel in 2016; new non-parole period of 14 years and 4 months
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APPEARANCES:
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Counsel
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Solicitors
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For the Director of Public Prosecutions
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Ms R Harper
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Solicitor for Public Prosecutions
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For the Accused
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Mr A Hands
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Vines Lawyers
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1 Robert Claffey, you have pleaded guilty to four charges of indecent assault. The maximum penalty for indecent assault is a term of imprisonment of five years.
2 Tendered on the plea as Exhibit 1 was a summary of prosecution opening in which the details of your offending were set out. I annex a copy of that document to these sentencing reasons.
3 In brief, the circumstances of your offending were as follows.
4 In August 1969 you were ordained a Catholic priest. From 1981 to 1989 you were the parish priest at the church of Our Lady Help of Christians in Wendouree, Ballarat. You lived in the adjacent presbytery and had pastoral duties for the attached Catholic primary school which bore the name of the church. During the period of offending you were between 38 and 41 years of age.
5 Your first victim, Archer Lavarack,[1] was between 12 and 15 years of age at the time of your offending against him. He and his family were parishioners at your church. There was apparently some conflict within the family and his parents gave approval for you to begin counselling your victim, their son. In order to provide this counselling you attended on numerous occasions at the family home and the sessions took place in your victim’s bedroom with the door closed. This is where all of your offending against Mr Lavarack occurred.
6 During the course of the sessions you deliberately created an atmosphere of intimacy, sitting close to the victim either on the bed or on the floor on a beanbag. At first you tickled Mr Lavarack, then hugged him and then kissed him on the forehead, with the admonition that your victim should love God and that you were a representative of God.
7 On one occasion, after the now normalised tickle and a hug, you kissed your victim on the mouth and then placed your hands down the front of his lap, rubbing your victim’s penis over his clothes with the palm of your hand. This offending is the subject of charge 1, which is a representative charge.
8 In another counselling session, you sat next to your victim on the bed, again hugged and kissed him, and then placed your tongue into his mouth. You again rubbed the boy’s penis on the outside of his clothing with your hand. This instance of offending is represented by charge 1.
9 On another occasion when Mr Lavarack moved away so as to avoid your kiss, you told your victim that you knew his school principal and that you could get your victim moved to another school. In consequence of this threat, your victim was scared and he later felt guilty for rejecting your advances.
10 On another occasion when you were tickling your victim, he moved away from you. You put your hand down the inside front of his shorts and underwear and placed your hand over the top of his penis, keeping it there for some time. This offending is the subject of charge 2, a representative charge. You told your victim how disappointed his father was in him. Your victim felt that he must have done something wrong.
11 On another occasion when your victim had turned his head away from you to avoid being kissed, you put your hand down his pants and underwear and held his penis. Hearing somebody in the hallway, you quickly removed your hand and began making general conversation. This instance of offending is represented by charge 2.
12 Not long after the above incident you told Mr Lavarack that you were going away, reminding him that your time together was “like confession and that it was a sin to tell anyone what you said to each other”. You then began tickling your victim who rolled over onto his front. As he was lying on his stomach, you put your hand on the back of his pants and then under his underwear and began rubbing your hand up and down between his buttocks. You then inserted your finger into your victim’s anus which caused him immediate pain. This act of penetration is the subject of charge 3.
13 You impressed upon Mr Lavarack that your talks together were secret, that they were confessional and that it would be a sin to tell anyone. You added that the victim did not need to tell another priest what had been happening as you had already spoken about it. You then told the Mr Lavarack’s parents that you were no longer going to have counselling sessions as you had been moved on by your parish. Mr Lavarack refused to continue attending church with his family.
14 Your second victim, Ryan O’Malley,[2] was a student at Our Lady Help of Christians Primary School in 1983 and between 6 and 7 years of age. On one occasion, Mr O’Malley and other boys were in the church preparing for an event. The other boys were sent back to class and you told Mr O’Malley to stay. You then told him, “You now have to do a penis inspection.” You grabbed the front of his pants, partially pulled them down and then used your other hand to grab Mr O’Malley’s penis, holding it for about one minute. Mr O’Malley was crying. You then dismissed him, telling him to go back to class. This offending is the subject of charge 4, which is a representative charge.
15 On another occasion, Mr O’Malley was sent to you by his classroom teacher. You took him into a room in your church, sat on a chair, pulled your victim towards you turning him around. You then placed your hand down the front of Mr O’Malley’s pants and underwear, grabbing and fiddling with his penis for about 30 seconds. You then let your victim go. As Mr O’Malley walked back to class, he noticed a wet sticky substance on the side of his jumper, which he later realised was semen. This instance of offending is represented by charge 4.
16 When interviewed by police on 11 May 2017 in relation to these matters, you denied the offending. There was a filing hearing in November 2017 and a contested committal in June 2018 where both victims were cross-examined. Your trial was set down for 8 July 2019. The matter resolved on 4 July 2019. Your plea of guilty thus comes close to the door of the court.
17 Mr Lavarack has written a victim impact statement (Exhibit 6) in which he speaks of the significant and lifelong emotional impact your crime has had upon him. He has been unable to express his feelings and this has impacted upon his relationships in this emotional sphere. Your actions caused him shame, distress, distrust, anger and fear. Nightmares and flashbacks have been constant companions for him throughout his adult life.
18 In addition, there was the confusion as to his sexual identity; he asked himself whether he had done something to justify or attract your behaviour towards him, was he homosexual and if so, would he be further isolated from friends, family and peers?
19 Being brought up in a Catholic family, he was taught to view priests as representatives of God and of the church, and not to question their actions. Throughout his life he has blamed his parents for failing to protect him. He lost his faith in the church.
20 He concludes:
“For many years I was a broken person due to the defendant’s actions and I can confidently claim, that whilst there is further progress required, I have become empowered due to the assistance provided by those around me.”
21 Mr Lavarack’s mother wrote poignantly in her victim impact statement (Exhibit 7) about how she had four children and lost two early in their lives but effectively lost her son, your victim, since his teenage years. It is clear that one consequence of your actions against Mr Lavarack was to fracture and irreparably damage his relationship with his parents with a sense of loss still keenly felt today.
22 Mr O’Malley has written in his victim impact statement (Exhibit 8):
“For my whole life I’ve had no enjoyment. There is not a day that I don’t think about what happened to me. All my life, since this crime happened to me as a child, I have always woken with bad dreams.
The social impacts this crime has had on me throughout my whole life so far have been devastating. I have struggled with relationships... and have had issues relating and dealing with emotions.
I feel that the life that I have had, as a result of this crime, isn’t really a life to me, it has been a sentence of no release. I am hoping I can move forward now that I have spoken up, I am hoping I will be able to move on with my wife and children and make a better future for us knowing that I have spoken up.”
23 Mr Claffey, the courts are developing a greater understanding of the impact of sexual offending upon victims, particularly upon children. Whilst that impact cannot overwhelm the sentencing exercise, there can be no doubt that your offending has had a lifelong, traumatic impact upon your victims.
24 I turn now to your personal circumstances.
25 You were born on 18 February 1943 in Rainbow, Victoria and are now 76 years of age. You were between the ages of 38 and 41 at the time of your offending.
26 In 1969 you were ordained as a priest following your theological studies. Between 1969 and 1992 you were appointed to various parishes within the Ballarat Diocese. You returned to the lay community in 1994. This was no doubt due to your admitted improprieties and the cloud of allegations of sexual offending that followed you from parish to parish.
27 Through the 1990s you became the sole carer for both of your parents who each succumbed to dementia. You also began to lose your sight, suffering from a rare form of glaucoma. You are now legally blind. This has led to your loss of reading, your one great pleasure and comfort. By 2002 both your parents had passed away.
28 From 2002 to 2016 you threw yourself into community activities, becoming a dedicated and respected advocate for the visually impaired. Tendered on the plea as part of Exhibit 3 were letters to the court attesting to your good work, which I of course accept.
29 On 4 October 2016 Her Honour Judge Hampel passed a sentence on you of 18 years and 4 months for the sexual abuse of 12 children, both boys and girls, between 1969 and 1992. There were 19 charges of indecent assault; some charges encompassed penetrative sexual offending. Eleven of those charges involving seven children, six boys and one girl, related to your time as parish priest at Our Lady Help of Christians in Wendouree. Thus the offending for which you fall to be sentenced today occurred during the period of other offending against other children in your care in that same parish. Her Honour directed that you serve a period of 13 years and 4 months before being eligible for parole.
30 I turn now to the submissions of counsel.
31 Ms Harper, learned counsel on behalf the prosecution, submitted that this was serious offending in the mid to high range for offending of this nature. In relation to each victim, the offending was brazen, involved a breach of trust, and revealed a stark sense of entitlement. Accordingly, general deterrence, just punishment and denunciation were all important sentencing considerations. She accepted that the need for specific deterrence is moderated, albeit not eliminated.
32 She reminded me that on all four charges, you fall to be sentenced as a serious sexual offender. As such, protection of the community must be the primary sentencing purpose.
33 Ms Harper did not seek a longer than commensurate sentence. She accepted the need for community protection has been tempered by your advancing years.
34 She submitted that there was scant evidence of remorse.
35 She argued that there should be some cumulation on the sentence you are currently serving.
36 Mr Hands, learned counsel on your behalf, submitted that your offending could be viewed as mid-range. He conceded that general deterrence and denunciation would loom large in any sentencing exercise. He submitted that the need for specific deterrence was greatly reduced, if not indeed eliminated.
37 The last instance of offending was in 1992 and since that time you have led an apparently blameless life and have been a positive contributor to the larger community, as well as caring for your parents. Thus he submitted your prospects for rehabilitation were proven. I accept that submission.
38 Mr Hands submitted that had these offences been in front of Her Honour in 2016, no greater sentence would have been imposed. Thus he submitted there should be full concurrency.
39 He urged me to take into account the fact of delay, which I understood to be a reference to the three and a half decades that have passed between the offending and matters being reported to police. I find neither the period of time between offending and disclosure to the police, nor the progress of the prosecution to be in any way out of the ordinary. No evidence was placed in front of me to suggest that during the intervening decades, you had been adversely affected by having these unresolved matters hanging over you.
40 As for community protection, Mr Hands reminded me that you will be nearly 87 years old at the time of your earliest date of release.
41 He urged upon me the utilitarian benefit of your plea in terms of saving to the community the time and the cost of a trial. In addition, your victims have been spared the trauma of giving evidence at trial, although I note they were cross-examined at committal. I give you credit for your plea of guilty.
42 Mr Hands submitted that your plea, even though entered at a very late stage, was also evidence of some remorse. You have written a letter of apology to the court (Exhibit 5). I am prepared to accept that you now demonstrate the beginning of insight into the impact that your offending has had upon your victims.
43 I turn now to the objective gravity of the offending.
44 Crimes against children are crimes against the community’s future and thus are crimes against our common humanity. Mr Claffey, your clerical collar afforded you the respect and deference of the faithful. You betrayed that trust. You used the disguise of holy orders, of the faith that you pretended to practise, not only to gain unchallenged and unquestioned access to your victims but also to secure their compliance in your crimes against them. Your priestly role provided you with various opportunities for access to your victims and, when alone with them, albeit in close proximity to other adults, you indulged your deviant desires and sexually offended against them.
45 Mr Lavarack was having trouble at home. His parents invited you into their home for the purpose of counselling. At their express invitation, their son was placed into your pastoral care. You determined to use the opportunities thereby presented to groom him and prepare him for your sexual predations. There were incremental expressions of physical intimacy as a precursor to the sexual offending to which you have pleaded guilty. You presented yourself to your victim as a man of God. You described the circumstances of his defilement as being akin to confession. You deployed the sacrament of confession to ensure your victim’s silence. Your offending not only grossly abused the particular trust that had been placed in you by Mr Lavarack’s parents, but mocked the priestly authority that you purported to exercise. You have stolen his faith as surely as you have taken away his innocence and childhood. The same hands that celebrated the miracle of the Eucharist at mass defiled children.
46 Mr O’Malley was a frightened child no older than seven years old when you offended against him. You objectified him, reduced him to a simple vehicle for your sexual gratification. Your offending against him was invasive and obviously caused your victim great distress, but his tears were to no avail.
47 Your offending manifested a grotesque sense of entitlement. I find that your moral culpability for this offending is high.
48 Charges 1, 2 and 4 are representative charges; you fall only to be sentenced for the offending captured in the charge and not the other represented instances of such offending. However, by virtue of being representative charges, you cannot claim they were isolated incidences occurring only on one occasion.
49 Mr Claffey, the sentencing process cannot give back to your victims that which you took from them, nor is it about retribution or revenge; nor are you to be punished for the failings of the Catholic Church. In sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is to deter others from behaving as you did, and I must consider specific deterrence, that is deterring you from repeating such offending. I must give primacy to the need to protect the community from you. I must express the community’s denunciation of your conduct. I must take into account the effect of your crimes upon your victims. I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty. I must have regard to current sentencing practices and to sentencing practices at the time of your offending in so far as they can be ascertained. I must try to balance your personal circumstances with the circumstances of your offending.
50 The sentence that you are currently serving reduces, in my view, the need for specific deterrence and ensures sufficient protection for the community. You do not have lineal descendants; you will not have access to children upon your eventual release. General deterrence, just punishment and denunciation are the primary sentencing considerations in your case. Even though your offending occurred many years ago, a clear message must be sent from this court to anyone contemplating offending against children placed in their care that if you are caught and brought before the courts, even many decades later, you will be punished.
51 I am required by law to pass no longer a sentence than is necessary. I am required to sentence you as a serious sex offender on these charges. Ordinarily, that means that I would be required to impose a sentence that is cumulative upon the other sentences you are already serving. I have moderated the orders for cumulation that I would otherwise have made, having particular regard to the principle of totality.
52 In fixing the sentence, I give full effect to all of the mitigatory factors to which I have been referred. For the avoidance of doubt, I have regard to:
i. Your age and legal blindness;
ii. The devotion you showed in nursing your elderly parents;
iii. In over 35 years since this offending, you have remained offence free and have made a positive contribution to the community;
iv. Prison is more onerous for you by reason of your vision impairment than it would be for sighted prisoner.
53 Nonetheless, the objective gravity of the offending is such that it can be only met, in my view, by a significant term of imprisonment.
54 On charge 1, indecent assault, you are sentenced to a term of imprisonment of 12 months.
55 On charge 2, indecent assault, you are sentenced to a term of imprisonment of 15 months.
56 On charge 3, indecent assault, you are sentenced to a term of imprisonment of 2 years and 3 months.
57 On charge 4, indecent assault, you are sentenced to a term of imprisonment of 15 months.
58 I direct that 3 months of the sentence on charge 2 and 4 months of the sentence on charge 4 run cumulative to each other and cumulative to the sentence imposed on charge 3.
59 This makes a total effective sentence of 2 years and 10 months’ imprisonment.
60 I order that 15 months of the sentence I have passed upon you today run cumulative to the sentence imposed by Her Honour Judge Hampel on 4 October 2016.
61 I further order that you must serve 14 years and 4 months before you are eligible for parole. This non-parole period takes effect from 4 October 2016, the date of Her Honour’s sentence.
62 On charges 1, 2, 3 and 4, you are sentenced as a serious sexual offender and I direct that this be entered into the records of the court.
63 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served 15 days of the sentence I have passed upon you and direct that this be entered into the records of the court.
64 Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a total effective sentence of 4 years’ imprisonment, with 2 years and 9 months to run cumulative to the sentence you are currently serving.
65 Pursuant to the Sex Offenders Registration Act 2004, you again become a registrable offender and the period of registration is life. You are required to re-sign a document acknowledging that you have received your obligations.
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IN THE COUNTY COURT Court Reference: CR-18-01343
AT MELBOURNE
In the matter of Indictment No: H12186340.1
THE DIRECTOR OF PUBLIC PROSECUTIONS
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ROBERT CLAFFEY
PROSECUTION PLEA OPENING
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Date of Document:
Served on Behalf of:
Prepared by: JOHN CAIN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic. 3000 |
5 July 2019
Director of Public Prosecutions
Solicitors Code: 7539 Telephone: Direct: File no: Reference: |
The offender
The complainants
Offending against Archer Lavarack – The first complainant
Offending against Ryan O’Malley – the second complainant
Record of interview
Q 17, 215-38 he could not remember the first complainant
Q 16, 141 he did not remember the second complainant
Q 20-42, 153-163 he acknowledged having been the parish priest at Our Lady Help of Christians Wendouree between 1981 and 1989 and living in the presbytery in Gillies Street
Q 39 as parish priest he was responsible for the school
Q 81 he visited parishioner’s families
Q 113-14, 229-234 his work had included counselling
Q 125 denied having a role in disciplining children at school
Q 176-84 denied telling the second complainant to do a penis inspection and touching his penis
Q 201-04 said that no student was ever sent to him for anything they had done wrong
Q 244-258 denied the alleged sexual offending against the first complainant
Q 313-17 described the church as an old army hut, a Nissan hut in an L shape
CHRONOLOGY
1981-1984 Offending the subject of this indictment
23/08/2016 O’Malley first statement to police
04/10/2016 Sentenced in Geelong County Court by Her Honour Judge Hampel
TES 18 years 4 months, NPP 13 years 4 months (PSD 15 days)
2610/2016 Lavarack first statement to police
11/05/2017 ROI
09/11/2017 Filing hearing at Ballarat Magistrates’ Court
15/12/2017 Committal mention
12/02/2018 Contested committal (did not proceed)
27/06/2018 Contested committal (1/2 day) at Geelong Magistrates’ Court
24/10/2018 Initial directions hearing
02/04/2019 Final directions hearing
16/05/2019 Further final directions hearing
06/06/2019 Further final directions hearing
04/07/2019 Matter resolved
8/07/2019 Plea hearing (trial listed to commence this day)
MAXIMUM PENALTY
VICTIM IMPACT STATEMENTS
s.6C SENTENCING ACT 1991 SERIOUS SEXUAL OFFENDER PROVISIONS
SEX OFFENDER REGISTRATION PROVISIONS
6AAA
Robyn Harper
Crown Prosecutor
[1] ‘Archer Lavarack’ is a pseudonym.
[2] ‘Ryan O’Malley’ is a pseudonym.
[3] The church building of that period no longer exists.
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