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R v Wright

 

[1996] QCA 104

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 10 of 1996.

Brisbane

Before McPherson J.A.

Pincus J.A.

Ambrose J.

[R v. Wright]

THE QUEEN

v.

LEO DANIEL WRIGHT

(Applicant)

Pincus J.A.

McPherson J.A.

Ambrose J.

 

Judgment delivered 19/04/96

Separate reasons for judgment by Pincus J.A. & McPherson J.A. concurring in the result; separate dissenting reasons for judgment by Ambrose J.

 

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

 

CATCHWORDS CRIMINAL LAW - INDECENT DEALING - SENTENCE -Catholic priest indecently dealt with several complainants - Breach of trust - Pleaded guilty - 3 years imprisonment imposed with no recommendation for early parole - Applicant seeking an early recommendation for parole.

R. v. Pham (CA 435 of 1995); R. v. S (CA 506 of 1995); R. v. S (CA 124 of 1995; CA 223 of 1995); and R. v. Collins (CA 29 of 1993).

Counsel: A. Glynn for the applicant

M. Byrne Q.C. for the respondent

Solicitors: Robertson O'Gorman for the applicant

Director of Public Prosecutions for the respondent

Hearing Date: 21 March 1996

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 19th day of April 1996

The applicant was convicted in the District Court at Brisbane after pleading guilty to an indictment charging 17 counts of indecency with children.  There were 13 counts of indecent treatment of girls under the age of 12; four more in which the girl was under 16; three counts of gross indecency with a boy under 16; and another (count 17) of indecent assault on a young Aboriginal woman aged about 18.  The first sixteen offences were committed during the period from January 1969 to December 1970, at a time when the maximum penalty for the offence was imprisonment for 5 years.  The last offence (count 17) was committed between January and July 1977.

The overall sentence imposed was imprisonment for 3 years.  The application before this Court for leave to appeal against sentence is based principally on failure to make a recommendation for early parole in favour of the applicant.

The circumstances of the offence are that, throughout the period from January 1968 to December 1970, the applicant was the assistant parish priest at the Catholic Church at Manly.  At the time of the last offence in 1977, he was stationed at West End, where he was full-time chaplain to the Aboriginal community of Brisbane.  The presbytery where he lived at Manly was next door to the home of the first two complainant girls, who were sisters.  Their parents were parishioners and friends of the applicant, who was invited to their house from time to time.  Opportunities for committing the offences arose when the complainants visited the presbytery on errands or to do minor chores related to parish affairs; when the applicant drove one of them in his car; or, in another instance, at the complainant's home.  Another incident charged (count 7) was alleged to have taken place in church during confessional; but, while pleading guilty to it, the applicant disputed the place so alleged.  In the case of the third complainant, the incidents took place at the presbytery; in the car; or in the course of a church outing to Dunwich; and, in the case of the complainant boy, on a similar such outing, or in the presbytery.

Most of the incidents charged in the first 16 counts involved the applicant being masturbated manually by the girl concerned.  On at least one such occasion he was completely naked while speaking on the telephone.  On some occasions he kissed the girls in a passionate and lascivious manner.  Once or twice he placed his hand on or around the area of the complainant's vagina.  Sometimes he rubbed his erect penis against their bodies.  The complainant in counts 14 to 16 was an altar boy, who was required to masturbate the applicant on three separate occasions.  The complainant in count 17, who was the 18 year old woman, was taken into a bedroom in the house where she lived and pulled on to the bed, where the applicant lay on top of her.  According to her account of it, as related by prosecuting counsel:

"She felt that he had an erection.  He was rubbing his penis on her stomach in a thrusting motion and he began to kiss her, and his hands were fondling her breasts and they were both clothed.  She remembers him squeezing both her breasts very hard, so hard it hurt.  He said to her, 'I want to make love to you'.  She said, 'You can't'.  He ignored her.  He kept squeezing her breasts and thrusting his penis between her legs.  He was breathing heavy, quickly, and sweaty while he was thrusting.  She just laid (sic) there, and she didn't move.  After a few minutes, he stopped moving, went limp on her body on top of her.  She remembers that she was looking up at the ceiling hoping that he would stop soon.  He got up then, and she remembers him adjusting his trousers.  She remembers - 'He grinned at me, and he said, "I will see you soon".'  Then he kissed her on the cheek, and said 'Walk me to the door".  So I got up, and walked him to the door'.  When he left, she slammed the door.  She went to the bathroom, she had a shower, she screamed."

It is not necessary to recount in any greater detail the incidents constituting the offences.  It is not suggested that force was employed on any occasion.  It is evident that the applicant used the authority of his position to accomplish his purpose with the young complainants.  His conduct has had a lasting impact on them.  Although the male complainant has not been affected, there are victim statements and, in one instance, a psychiatric report showing that all four female complainants continue to suffer the effects of their experiences.  They are having sexual and other difficulties in their marriages; are distrustful of close physical contact with men; and fearful for the the safety of their own children.  Most, if not all of them, have abandoned their religious faith.  As children, they were oppressed by feelings of guilt, which was highlighted by a feeling of inability to tell anyone for fear of being disbelieved.  Naturally enough, their parents trusted the applicant and had no idea of what was happening.  There is no reason to doubt the substance of what the complainants say on these matters.

The applicant, who is now 58 years of age, has since leaving school, devoted his whole life to the Church.  A psychiatric report tendered at the hearing says that he is an intelligent but somewhat immature and rather shy individual.  As parish priest, he was living an isolated existence, having no one else in whom he could readily confide, or to whom he could look for assistance.  The feelings of guilt and personal failure from which he is now suffering can be readily imagined and understood.  He is not likely to re-offend, and is no longer employed as a parish priest but in some other capacity or role in the Church.

On the hearing of the application, it was accepted by counsel for the applicant that a sentence of imprisonment for three years was within the penalty range for the offences committed, and that some period of imprisonment was called for; but that the judge was wrong in failing to make a recommendation for early parole as a recognition of the applicant's genuine remorse and his efforts at rehabilitation.  In 1991 one of the complainants described her experience to a nun, who communicated with the applicant.  His attempt to apologise to the complainant for what he had done was rejected by her.  Some 12 months before these matters were reported to the police, the applicant travelled to a church institute in the U.S.A., where he underwent treatment for some eight months, and he has been receiving psychiatric counselling since his return to Australia.  His efforts at rehabilitation will be interrupted, and perhaps defeated altogether, if he is sent to prison for a lengthy period.

These and other matters are all factors which go in mitigation of sentence.  However, the judge below expressly referred to and took account of them in arriving at the sentence imposed.  He said that, if it were not for them, the sentence would have been "markedly higher" than that imposed.  It would have been possible to justify a longer term of imprisonment for offences of this number and kind.  There were 17 separate acts of indecency committed against four different complainants of either gender ranging in ages from no more than 9 to about 16 years, and another of a different ethnic background.  Commission of the offences and their concealment were facilitated by the acknowledged position of spiritual authority which the applicant occupied.  It is therefore a serious case of its kind because the applicant betrayed a trust of the highest character.  The offences were committed many years ago, when most of the complainants were very young; but the consequences are still being felt by those affected, and may be expected to continue to do so perhaps for the remainder of their lives.

It would have been open to his Honour to impose cumulative sentences in respect of each of the complainants, and particularly the last of them, where the offence was committed some seven years after the others.  Had he done so, it is not easy to see that the effective sentence, even if coupled with a recommendation for parole, could properly have been any shorter than that in fact imposed.

As regards comparative sentences for offences of this kind, it has not proved possible to locate a matter which is precisely in point.  A single instance of indecent dealing in R. v. Phuc Minh Pham (CA 435 of 1995) was visited with a sentence of imprisonment for one year.  It was a case in which the offender, who was a total stranger, caused a girl under 12 to masturbate him.  In R. v. S (CA 506 of 1995) this Court recently affirmed a sentence of imprisonment for 15 months imposed on a 31 years old man who pleaded guilty to having had his 11 years old daughter suck his penis on four occasions and, on another occasion, to having rubbed her vagina with his hand.  His actions may be considered to be generally more serious instances of their kind than these here; but only one victim was involved and substantially fewer offences were committed.  Like the applicant here, the offender in S was genuinely remorseful, but in both matters the psychiatric well-being of the victim was affected.

At the other end of the penalty range, the offender in R. v. S (CA 124 of 1995; CA 223 of 1995) was convicted of seven counts of indecently dealing with a girl aged 6 to 8 years, and, at a different hearing, of a further three counts of indecent dealing with a different girl of similar age.  The offences, which consisted of various acts of inserting a finger or tongue in or on the girls' vaginas, and having them rub or suck his penis, were committed during a period of some two or three years from 1977 to 1979, which was some 15 or more years before the matter came to court in 1995.  Again, although overall more serious in kind, the offences and the victims were less numerous.  Like the applicant before us, the offender in S, who was of a comparable age when sentenced, was a trusted friend of the parents of one complainant and lived next door to the home of the other.  Applications for leave to appeal against sentences of 2½ years and 3 years, which were made cumulative, were dismissed.  Another case in which a total cumulative sentence of comparable duration have been imposed for several offences of indecent dealing committed against young children of either gender is R. v. Collins (CA 29 of 1993), where application for leave to appeal against a sentence of imprisonment for 3 years and 3 months was dismissed.

Not much purpose is served by multiplying illustrations of this kind.  Although the maximum penalty was only five years when these offences took place, the sentence of three years in the present case is fairly within the range, having regard to the number and kind of the offences; the number of different complainants involved; their ages; the period over which the offences were committed; the lasting effects for at least four of the victims; and the position of authority and trust which the applicant occupied and betrayed in committing them.  A longer term of imprisonment could have been imposed by making the sentences cumulative and adding a recommendation for parole to produce an effective result similar to that reached here.  Electing not to adopt that course involved no error of sentencing principle.  A period in prison will no doubt be detrimental to the applicant's programme of rehabilitation; but his individual welfare is not the only consideration at issue, and he must come to terms with that prospect as best he can.

The application for leave to appeal against sentence should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19/04/1996

I have read the reasons of McPherson J.A. and those of Ambrose J.  I agree with McPherson J.A. that the application should be dismissed; subject to the comments which follow, I also agree with his Honour’s reasons.

To a greater extent than many other offenders, the applicant must have suffered, and continue to suffer, from the disgrace of his exposure and imprisonment - but not only from that;  one must consider his shame at the harm done to the Church to which, as McPherson J.A. points out, he has devoted his life.  These factors must I think be put into the balance when weight is given, against the applicant, to his position in the Church as aggravating the seriousness of his offences against its adherents who no doubt trusted him.  Further, I am prepared to accept that, as was put forward on the applicant’s behalf, he was not been able easily to adjust to life as a parish priest and that his difficulties were compounded by lack of organisational support for him in that role.

I have noted the view of McPherson J.A., with which I agree, that the applicant is not likely to re-offend.  I also agree that the penalty of 3 years imprisonment with no recommendation for parole is within the proper range.  But I would add that in a case like the present, where there appears to be no real prospect of re-offending, so that individual deterrence is hardly an issue, I doubt if any higher penalty, for offences of this degree of heinousness, would necessarily have been warranted.  In the circumstances of this case, being sent to prison at all is a catastrophe, albeit a deserved one, for the applicant.  Keeping in mind the applicant’s remorse, together with his pleas of guilty, co-operation and attempts at rehabilitation, I cannot think that the sentence, although not one with which we should interfere, was light.

As I have said, it is my opinion that the application should be dismissed.

REASONS FOR JUDGMENT - B. W. AMBROSE J.

Judgment delivered:  19/04/1996

I have had the opportunity of reading the reasons for judgment of McPherson JA and agree generally with his outline of the facts in this case.  However, I have come to a different conclusion upon my analysis of the facts and circumstances on the only ground really argued before us - whether an early recommendation for parole ought to have been made.

I agree that the sentences of imprisonment imposed were within the appropriate range having regard to the totality of the applicant's criminal conduct.  On the facts of this particular case, however, I am far from persuaded that a greater period of imprisonment could have been justified provided a recommendation that the applicant be eligible for parole after serving 18 months imprisonment were made.  It is true that at the conclusion of his submissions the Crown Prosecutor observed:

"So there is no misunderstanding as to our submission, the submission for three years imprisonment is made having regard to the totality of the criminal conduct.  We do not advocate a recommendation for parole earlier than the normal date."

That observation was made in reply after defence counsel, not demurring to the range of sentence advanced by the Crown, had referred to sentences submitted to be "comparable" where recommendations for early eligibility for parole had been made.

I do not read that observation as advancing the proposition that whatever sentence might be imposed the applicant should not be eligible for parole earlier than 18 months after the commencement of his sentence.  Such a submission in my view would be contrary to the principles upon which recommendations are or ought be made for early eligibility for parole.  In my view the length of any sentence of imprisonment to be imposed ought be determined disregarding the date when the prisoner will become eligible to make an application for parole, whether that date is reached upon serving half the period of imprisonment under s.166(1) of the Corrective Services Act 1998 or whether it is a date specified under s.157(2) of the Penalties and Sentences Act 1992.

The eligibility of a prisoner to apply for parole does not of course lead inevitably to the granting of parole if and when he applies for it.  Experience shows that it is by no means unknown for prisoners eligible to make application for parole to have their applications rejected - sometimes on a number of occasions.  Indeed ss.172(1)(a) and 172(2) of the Corrective Services Act recognise the discretionary nature of the grant of parole to a person eligible to make application for it.  Upon the material placed before the Court at sentence, the first 16 offences of indecent dealing involving 3 young girls and a young boy all occurred within a period of about 12 months from mid 1969 to mid 1970.  The last offence of indecent assault was committed in the first half of the year 1977 against an 18 year old girl.  During the commission of the last offence both the applicant and the girl remained fully clothed and the applicant endeavoured to persuade her to have intercourse with him.  She declined and the assault after she had first declined and was continuing to do so was of a sexual nature and was apparently effected in an endeavour to persuade the girl to co-operate with him and voluntarily have sexual intercourse.  It could not be described as violent although of course it involved the application of force without her consent.

On the various occasions on which the applicant had the three girls touch his penis or even masturbate him he did not ejaculate.  On one of the occasions on which he had the boy masturbate him, the applicant did ejaculate.

The applicant certainly placed his erect penis against the body of the girls from time to time but this contact was made through the clothing of the children and there was no skin to skin contact except to the extent that their hands come into contact with his penis when they touched or held it.

Victims' statements were placed before the sentencing judge from the four girls.  All of course are now mature women and have children of their own.  All state that they have been adversely affected by the treatment they received at the hands of the applicant, three of them 25 years ago and the fourth 19 years ago.  Some claim to have been more adversely affected than others.

Pursuant to s.9(2)(c), of the Penalties and Sentences Act in sentencing the applicant, the Court was obliged to have regard to any physical or emotional harm done to any of the children and indeed the adult to which count 17 referred.  The material placed before the Court indicated that there had been no lasting physical or emotional harm done to the young boy indecently dealt with.

In my view, all offences of a sexual nature committed upon children of the kind comprised in the first 16 counts are serious offences.  The very nature of an indecent dealing offence is engaging in sexual activity with a child where the consent of that child is irrelevant.  There is nothing to suggest on the facts of this case that any of the children were forced to engage in sexual activity with the applicant rather than being persuaded to do so.  Indeed it is the very fact that the applicant used the dominion over the children which his position as priest gave him to persuade them to engage in indecent behaviour that is a significantly aggravating factor in the offences to which he pleaded guilty.

If one disregards the abuse of the power which his position as priest gave him over the children and looks only at the nature of the sexual activity which he induced them to engage in with him, it is my view that that activity falls short of the very serious indecent dealing activity with which unfortunately Courts must regularly deal.

To say that is not to suggest of course that these offences - or at least the first 16 counts involving children of a relatively young age at the outset of their adolescence - are not serious offences.  Indeed, the impact that those offences had on the three young girls is not surprising.  It is the assumption that such activity will often produce such reactions which undoubtedly explains why criminal sanctions are imposed upon people who engage in activity of that sort with children.  The Courts assumed the infliction of such a detriment on children which would be reflected in their later lives long before the practice developed of tendering "victim impact" statements - presumably to provide evidence of matters contemplated by s.9(2)(c) of the Penalties and Sentences Act 1992.  Upon the facts of this case, the weight to be given to those impact statements must be determined in the context the instructions the applicant gave not to have any of the complainants cross-examined upon their hand up statements on committal, nor to cross-examine them upon the impact statements placed before the Court.  He challenged the content of those impact statements in only a couple of what might be thought to be relatively minor respects of which he had personal knowledge and it was not thought worthwhile to go into those relatively minor matters because in the context of the overall criminality of the applicant's behaviour they were not thought to be of significant consequence.

A prisoner pleading guilty to an offence may find himself or herself in an invidious situation should a victim impact statement be tendered upon sentence.  However reliable the contents of that statement may appear on the surface, they may in fact be exaggerated or indeed by reason of omission suggest a far greater impact on the victim than that which the offence in fact had.  Any challenge to the content of the statement, particularly one which involves cross-examination of the maker, might be feared to lead to a perception of lack of remorse.  This is demonstrated clearly on the facts of the present case where the adult complainant in count 17 signed a statement for use on the applicant's sentence providing details of problems she had had as the result of "childhood horrors" and recording that she had found that she was continuously thinking back "to the ages when" she was abused.  She stated that as late as July 1995 she had to enter a hospital for four weeks to undergo "emotional release therapy".  Indeed, she had to resign from a position she had "doing research as an academic on abuse in addition to working as a counsellor" in 1994.

Quite properly the Crown also placed before the Court a report from a psychiatrist who had treated this complainant for the effects upon her of the "abusive childhood" she had received "at the hands of others including Leo Wright".  That psychiatrist expressed the view that the abuse the complainant had received at the hands of the applicant had contributed to her continuing emotional lability but was by no means the sole contributing factor.

It is clear upon the material that the complainant in count 17 was no longer a child at the time of the indecent assault committed upon her.  It is equally clear from the psychiatric report that the single indecent assault committed upon her by the applicant when she was 18 years of age was only one of the contributing factors to her "emotional lability" and had to be viewed in the context of or along with childhood abuse, presumably which she had received at the hands of others prior to the occasion of that assault in 1977.

I draw attention to this matter without in any way attempting to lessen the serious impact which the indecent assault may have had upon that complainant.  She had indeed come into contact with the applicant when he was involved in social work in which she was also interested.  Doubtless she felt secure in his company because he was a priest and because he was also involved in the performance of social work.  The fact that she had received abuse at the hands of others as a child probably then weighed upon her emotional development.  The fact that the applicant as a priest whom she respected and trusted then attempted to seduce her and in doing so committed an indecent assault upon her no doubt magnified the "emotional lability" which the previous abusive conduct of other persons towards her had engendered or was in the process of engendering.

Disregarding the abuse of the power and opportunity which the applicant's office as priest gave him with respect to the complainant in count 17, I would categorise that offence as less serious than the offences committed on the three young girls, two of whom were about 10 years of age and the third about 14 years of age, or upon the boy who was about 14 years of age.

Having said that, however, in my view it could not be said, and indeed it was not argued, that a three year sentence covering all the offences was inappropriate.

In my judgment, however, the level of sentence imposed was justified not so much by the nature of the physical activity in which the applicant engaged with the four children and the 18 year old girl, as by his abuse of the power and dominance which his position as priest gave him over the children all of whose parents apparently and understandably entrusted them to his care and the influence and opportunity which his position as priest gave to him with respect to the 18 year old girl with whom he was engaged in pastoral work.

Without in any way suggesting that the physical activity in which the applicant engaged with the complainants was not serious because of its potential to do them emotional harm - which to some extent has been realised - I approach the exercise of sentencing discretion in this case with the view that the most serious aspect of culpability involves the applicant's abuse of the power and dominance which his religious office gave him over the victims of his sexual advances and activities.

In my view, the question whether a recommendation for early parole ought to have been made must be considered in the light of circumstances peculiar to the applicant which may have contributed to the commission of the offences to which he pleaded guilty and regarded in the context of any remorse which he showed and the prospects for rehabilitation open to him while on parole which may not be readily available while in custody.

There was tendered upon sentence a comprehensive psychiatric report from Dr Curtis for whose assessment and therapeutic management the applicant was referred by Dr Murphy on 21 April 1994.  I will not attempt to descend to the detail of the applicant's development contained in the report, but will refer only briefly to matters which seem to me relevant to the question of a recommendation for early eligibility for parole.

The applicant's mother died when he was five or six years of age and this death had a serious, emotional effect on his father who remarried when the applicant was 10 years of age.  His sexual development was seriously impaired by sexual abuse at the hands of an older male.  This abuse which sometimes involved sodomy caused great distress to the applicant as he approached puberty at age 13 or 14 years; as he grew older he refused to participate in this activity.  He eventually entered a Christian Brothers' school from which he graduated to Banyo Theological College.  Early in adolescence the applicant had contemplated a religious life and apparently believed that this received his father's approbation.  Having completed his training at the Banyo Theological College, he took final vows as a sacramental priest at age 25.  He tried to deal with his sexual problems through prayer and found this an effective method of distraction and control of sexual urges during seminary life.  His life as a priest has been continuous since then.  At time of sentence he was 58 years of age.

The applicant never received any sexual education as he grew up at home.  The continuing pressure exerted on him, as he approached puberty, by the older youth involving compulsive masturbation and attempted sodomy, had a very distorting effect on the applicant.  He was in any event very concerned at his experience of penile erectile activity from about age 12 and thought of himself as abnormal and immoral.  He apparently received no sexual education of any sort at the seminary, being counselled merely about "physical custody of the eyes".  The religious constraints of seminary life forbade him to inform himself about matters of sexuality from books which were described as "pornographic".  Upon his ordination the applicant assisted as parish priest for a number of years; he was part-time chaplain to an Aboriginal community for some years; he worked as an assistant priest and as parish priest in a number of locations in south-east Queensland.  During the whole of this time there was no organised level of in-service training or supervision.  In the late 1960s and early 1970s a significant change occurred with respect to interpersonal barriers that had previously existed between parish priest and his parishioners.  Because of the lack of training and education on interpersonal matters and relationships, the applicant found the move from the role of sacramental priest to that of amateur health worker/social worker difficult.  He was then in his late 20s and early 30s.  Indeed, Dr Curtis said that in the applicant's case it had been harmful.

According to Dr Curtis, the applicant "and all his siblings have suffered psychoneurotic mal-adaptations".

It emerges that in 1972 the applicant sought advice from a chaplain about the sexual "difficulties" he was then experiencing.  This was within a year or so after the first 16 of the counts to which he pleaded guilty.  He obtained referral to a senior Brisbane psychiatrist who provided him with counselling and aversive conditioning (electrical shock treatment).

Obviously this treatment was not entirely successful in sorting out the applicant's sexual problems, although there is no evidence that subsequent to it he again became involved in sexual activity with children.

At the end of 1972 the applicant confessed his sexual activities to a bishop of the church who arranged to have him transferred to another parish.  Unfortunately, no steps were taken to provide him with experienced psychiatric or psychological treatment, counselling or advice.

In June/July 1973 the applicant attended on another bishop with two laymen confidantes.  The bishop gave sympathy to and consoled the applicant but neither he nor the two male confidantes recommended any course of remedial treatment.  The bishop again simply transferred the applicant to another parish.

It was in 1977 that the applicant committed the indecent assault on the 18 year old girl in an attempt to persuade her to have intercourse with him.  He was then about 40 years of age.  There is no evidence that prior to that time and subsequent to receiving aversive conditioning in 1972 the applicant had engaged in any other sexual activity with children.

During 1985 the applicant had eight counselling sessions with a clinical psychologist in an effort to sort out his problems with sexuality and human relationships.

In 1988 he confided all the difficulties he had been having with respect to his sexuality to a religious organisation involving Josephite nuns.

Dr Curtis expressed the view that the applicant and his siblings all had their lives burdened with life-long depressive and isolative emotional features as the result of the death of their mother and the effect that had on their father and on his relationship with them.  He said that the damage to the applicant was compounded by years of sexual abuse by the older youth and compounded also by his reaction based upon religious scruples and his developing perception that all human relationships were physically sexualized.  He said that the psycho-sexual development of the applicant never advanced much beyond the infantile level of curiosity involving looking, touching and auto-eroticism of tentative exploration.  He attempted to control his sexual unhappiness by embracing "avoidance via seminary training and religious practice asceticism".  Unfortunately the church failed to provide any avenue leading to assistance for his developmental problems and the psychiatrist expressed the view that his psychic maldevelopment and his training as a sacramental priest did not equip him to undertake the tasks of a pseudo-social worker, manager, counsellor, hostel shelter supervisor etc.

With reference to the applicant, Dr Curtis says that:-

"The paedophilic label is required by definition but is inadequate here in addressing behaviour that was masturbatory autoerotic and expressive of a mentally crippled child in a man's body."

He observed that for many years the applicant had:

"suffered from self-loathing and sexual unhappiness and his urge for reconciliation prompted recurrent attempts to find 'help' at unpredictable scattered intervals".

Commenting on the applicant's present personality he says:-

"He is a physically mature man in late mid-life.  He is highly intelligent.  He is trained as a sacramental priest.  He has no training for the work he was required to do and had no psychological defences to set up appropriate boundaries and limits -- he has been grossly psycho-sexually immature and 'deformed' during his adult life."

He expresses the view that:-

"The management practices and the human resources management of the Catholic Church in Australia and (in my own personal experience in England and in France) have not kept pace with the pressures which religious personnel are under as part of day to day practice -- Parish Priests are left to their own devices they experience little peer support and effective ministry and supervision from the bishops."

Dr Curtis expressed the view that an isolated Parish Priest like the applicant was, is placed at great risk by lack of resourcing, role confusion and the demand characteristics of the place where he works.  It seems that between 1985 and 1994 therapeutic and support facilities became available at least in the United States of America to persons like the applicant in religious areas who were maladjusted sexually.  Indeed early in 1994 the Director of the Specialist Psychiatric St Luke's Institute at Maryland in the United States of America toured Australia discussing the problems of sexuality from which some priests suffered.  There were also discussions concerning sexual abuse.  The applicant attended one such discussion and declared in front of other persons attending that he had the very type of problem which the Director of St Luke's indicated might be addressed at the institute.  It seems that over a period of years one or more of the complainants had complained to other priests and/or nuns in the Catholic Church about the applicant's activities and these were no doubt relayed to other persons in the church.

Late in 1990 a senior priest who had been approached by one of the female complainants in this case contacted the applicant concerning her allegations and as a result the applicant was removed from parish duties and participation in the act of ministry in August 1993.

It was in 1990-1991 that two of the female complainants (then in their 30s) refused to accept the apologies of the applicant for his conduct towards them, for which he was sentenced.  Indeed the complainant in count 17 approached the applicant to tell him that he had "taken away her innocence" when he assaulted her.  He apologised and asked her forgiveness which she refused.  While the refusal of those complainants to accept his apology or to forgive him is understandable, it must have made the remorse which he obviously bore a heavier burden.

On 21 April 1994 Dr Curtis conducted a lengthy, psychiatric, clinical examination upon the applicant to satisfy immigration requirements for his entry into the United States to attend an in-house treatment program at St Luke's.

The applicant attended that institute for a period of 8 months in the latter part of 1994.  It was in the course of this treatment program that the basic psychiatric disabilities of the applicant were diagnosed and his personality and sexual immaturity addressed.

It appears that the applicant complied totally with the management plan set up for him at the St Luke's centre.  Upon his return to Brisbane he received his individual psychotherapy from Dr Curtis.  There is a formal support group which supervised the applicant and consulted with Dr Curtis and kept him informed of his progress.  The applicant has completed and maintains a "12 step program" which is an anti-compulsive behaviour modification program somewhat similar to the Alcoholics Anonymous program.  His day to day living was supported by a Catholic religious order.  He had no public ministry.  He was required to keep his personal, religious practices in tact and to have spiritual direction on a regular basis in addition to secular psychotherapy.  He had open contact with adults.  The "12 step program" was run in-house by the religious order.  He was permitted to perform a sacramental role in the religious community on a "private" basis.

According to Dr Curtis the applicant is precluded from relearning "psycho-sexual behavioural skills" by the constraints imposed upon his behaviour as a priest in a religious environment.  He has not recovered from his psycho-neurotic mal-adaptation and even now cannot be classed as "psychologically well".  However, he is functional within the therapeutic management to which he was subjected prior to sentence.  It is the view of Dr Curtis that over the next few years the applicant will achieve an improved self-image and be able to maintain a more mature open relationship with adults.

The applicant is not at risk of re-offending and has not been so for some years past.  Dr Curtis said that having seen and assessed the applicant both before and after the therapy he received at St Luke's institute; it is clear that the program he undertook there has helped him to progress and he is now "behaviourally safe".  The therapeutic work at St Luke's was based upon men sharing their frailties openly between themselves "in a milieu of trust" which the applicant had not previously had the opportunity to do either in his family circumstances or within his church environment.

It is clear on the material that the applicant for much of his life since adolescence has been self-tormented by sexual confusion and unhappiness which has produced selfloathing, remorse and an inability to overcome, even with medical treatment he obtained by way of aversion therapy in 1972, the impulsive dysfunction he experienced when exposed to opportunities which presented themselves for him to engage initially in sexual activity with children and later with an 18 year old girl.  Dr Curtis expresses the view that the applicant's efforts to obtain treatment for his abhorrent behaviour was based upon inner torment.  His attempts at aversion therapy failed to overcome his succumbing to the temptation to which he yielded in 1977 when he indecently assaulted the 18 year old woman in an effort to persuade her to engage in sexual activity with him.  The absence of any facilities or system to provide him with treatment or counselling or therapy when he consulted bishops in 1972 and 1973 simply compounded the problems which had evolved since his ordination.  Dr Curtis expresses the view that the applicant is no longer at risk of child molestation.  His interpersonal discipline is still frail.  He has demonstrated his remorse by pleading guilty to all charges "to minimise further harm to my victims".  He specifically instructed that there be no cross-examination conducted on his behalf at committal proceedings.

At time of sentence he was participating in an established and comprehensive management program which gave every indication of succeeding.

Dr Curtis' view is that the applicant is capable of cooperating with the requirements of community correction.  He does in fact aspire to be of service.  It is part of his treatment and management plan that he publicly and openly expose his shame and his need to make reparation for his past behaviour.

According to Dr Curtis the consequences of a custodial sentence might involve -

  1.  A breakdown of the comprehensive treatment which commenced in 1994 upon his admission to St Luke's Institute in the United States and which continued until date of sentence on 14 December, 1995 due to the constraints of incarceration and no doubt difficulty in following a program as effective as that available to him outside prison.  Upon his eventual release from prison there will be a risk of a failure to re-establish ongoing treatment necessarily cut short upon or at least interrupted by imprisonment.
  1.  Exposure to male homosexuality in the prison system and threats generally directed at him by persons seeking to induce him to engage in homosexual activity keeping in mind the history of abuse which he suffered as a child and the effect that had on him.

I have set out in some detail circumstances personal to the applicant which in my view ought be kept in mind in imposing sentences for offences involving his abuse of power and dominance which his position as priest gave him over the victims of his offences which in my judgment is a very significant aspect of his criminal culpability.

Viewed against this background and keeping in mind his early plea and the steps he took to ensure that the complainants did not have to give evidence, this is a case which in my judgment makes very desirable a recommendation for early parole.

The Corrective Services Act contemplates that all prisoners shall be eligible for parole after having served not less than half the sentence imposed.  Under s.157(2) of the Penalties and Sentences Act a Court may specify a date before or after the date half-way through the sentence imposed for the prisoner to become eligible for parole.

The recommending of eligibility of course does not mean that parole will be granted automatically when an eligible prisoner makes application for parole.  It simply means that upon the date specified he will be eligible to make application.  Whether it will be granted will depend upon the exercise of discretion of the Board which no doubt will have regard inter alia to the perceived conduct and attitude of the prisoner during the period spent in custody prior to becoming eligible for parole.

Accepting that apart from the personal circumstances of the applicant to which I have referred at some length a sentence of three years imprisonment was within the appropriate range and accepting that by virtue of s.166(1) of the Corrective Services Act the applicant will not become eligible to be released upon parole until he has served at least 18 months of that sentence, the question is what recommendation ought to have been made with respect to early eligibility for parole.

In my view in the circumstances, a recommendation ought to have been made that the applicant be eligible for parole after serving nine months of the sentence imposed upon him.  Such a recommendation would make him eligible for parole at a date when his incarceration for nine months had sufficed to make it clear that the community does not approve of conduct of the sort which led to his conviction (s.9(1)(d)) and to discourage him and other persons in a similar position from committing the same or similar offences (s.9(1)(c)).

It would also provide a condition which would probably assist in the applicant's rehabilitation (s.9(1)(b)).  It would acknowledge his remorse and significant efforts made at rehabilitation before his offences were brought to the attention of the police and so encourage him to persevere with the therapeutic program designed to help him overcome his psycho-neurotic problems which led him to offend.

Whatever period of the time the applicant spends in custody rather than on parole it is quite unlikely that that will in any way alter the impact of his offending activities on his victims of 19 to 25 years ago.  They will be no better off and no worse off if the applicant spends 18 months in actual custody before release on parole than they will be if he spends nine months before release.

Should he commit other offences or fail to comply with the conditions of parole the applicant will of course be liable to serve the balance of his custodial term which will be three years imprisonment less the period served before release on parole.  Release on parole therefore cannot properly be regarded as termination of punishment for the offences to which he pleaded guilty.  On the contrary release on parole after the expiration of nine months would mean that at any time during the ensuing two years and three months should he breach his parole he can be called upon to serve the balance two years and three months of imprisonment unserved at the time of release upon parole.  It would be quite incorrect to view an early release on parole as the cessation of the effect of the sentence imposed upon the applicant.  Upon release on parole he would in effect be contingently liable to serve the balance two years and three months of his sentence should he breach his parole at any time during the following two years and three months.

On the facts of this case in the circumstances, it could not be said that altering the sentence to make a recommendation for eligibility for parole after nine months would amount to a mere "tinkering" with the sentence imposed.  In my judgment a recommendation that the applicant be eligible for parole after nine months instead of after 18 months would probably have a significant impact on the likely success of the management plan which commenced in about April, 1994 and had proceeded for something like 20 months before his imprisonment.  No material was placed before the Court as to possible or likely impediments that might be placed in the way of following that plan while the applicant is in custody.  It seems quite likely that some efforts would be made to give the applicant therapy, counselling, etc with a view to securing his adherence to the management plan as far as possible pending release upon parole.  Release on parole after nine months would put maintenance of the management plan at less risk than would a release on parole postponed for 18 months.

It is my view therefore that to recommend eligibility for parole after nine months instead of leaving the statutory eligibility arise after 18 months in custody would be to provide significant assistance in the rehabilitation of the applicant without in any real way diminishing the deterrent effect of the three year sentence or in any way lessening the disapproval of the conduct of the applicant which that sentence manifests.

I would therefore grant the application for leave to appeal.

I would allow the appeal and in lieu of the sentence imposed would impose a sentence of imprisonment for three years and I would recommend that the applicant be eligible for parole after serving nine months of that imprisonment.

Close

Editorial Notes

  • Published Case Name:

    R v Wright

  • Shortened Case Name:

    R v Wright

  • MNC:

    [1996] QCA 104

  • Court:

    QCA

  • Judge(s):

    Pincus JA, McPherson JA, Ambrose J

  • Date:

    19 Apr 1996

Litigation History

No Litigation History

Appeal Status

No Status