According to Australia’s High Court, this is how not to pronounce sentence on a priest:
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.
Two decades ago, NSW District Court judge John Nield addressed these words to one of Australia’s worst sex offenders, who had abused dozens of children in his congregation. The priest was already serving a six-year term — the same sentence George Pell is now serving — for twenty of those offences. Nield’s task was to increase that sentence after three new victims came forward and the priest himself confessed to dozens of other crimes. He gave the priest a further sixteen years.
But in 2001 the High Court ruled that the judge had mistakenly refused to take account of the eight witnesses who had described how good the priest was at his job. Fellow clerics spoke of the marriages the priest saved, the bereaved he comforted, the sick he tended and the charity he gave to all, in the same years that he raped children. The district’s vicar-general told Nield that so many had benefited from the priest’s ministry that it “would be tragic if the good he has done were lost sight of in the situation that he is in at present.” Parishioners whom the priest had comforted in their darkest hours told of visiting him in Long Bay prison, but Nield dismissed their evidence tersely: “Whatever he had done and achieved, he is not a good man.”
Should we sentence people for what they did or who they are? When Victoria’s County Court chief judge Peter Kidd sentenced George Pell last week, he was at pains to say that he was not sentencing him for all the bad deeds in his life. “You are to be punished only for the particular wrongdoing you have been convicted of on this indictment, of sexually abusing two boys in the 1990s, and only of that wrongdoing.” Not for Pell’s alleged abuse of other children, on which charges had been dropped. Nor his alleged failures to stop other priests’ abuse, on which charges have never been brought. And also not for Pell’s many bad but legal acts as one of Australia’s most reviled religious leaders: against his opponents in the Church, against the faithful who differed with his doctrinal views, against victims seeking compensation, against humility, even against art. Just for what he was found to have done to two boys in 1996.
But the law’s laser focus doesn’t hold for the other side of the personal ledger — not since the High Court weighed in over what Nield said to his prisoner. “Reading Judge Nield’s remarks on sentence,” observed Justice Michael Kirby, “reminded me of nothing so much as the judge’s remarks to Oscar Wilde.” He was referring to events a century earlier, when judge Alfred Wills told the playwright, whom a jury had just convicted of gross indecency, “It is no use for me to address you. People who can do these things must be dead to all sense of shame, and one cannot hope to produce any effect upon them.” Kirby joined a majority of the High Court in ruling that Nield’s words to his prisoner lacked “the detachment that his role required” and wrongly offered a “one-dimensional” take on the priest’s character. Holding that the priest “was entitled to some leniency for his otherwise good character,” they ordered a re-sentencing that shaved a year off the priest’s sentence.
We don’t know exactly by how much George Pell’s sentence was reduced because of the evidence of his ten character witnesses, including former prime minister John Howard, who described Pell as a “lively conversationalist” who “frequently displayed much courage and held to his values and beliefs, irrespective of the prevailing wisdom of the time.” The chief judge didn’t mention Howard, but noted how people who knew Pell “for many years in various professional and personal capacities” had written that he “dedicated his life to service, in particular to vulnerable members of the community.” Kidd observed that the prosecution left unchallenged claims that Pell was a “compassionate and generous person, especially to those experiencing difficulties in their lives,” and assertions about his commitment to “social justice” and youth education. Ruling that his offending was “isolated,” he told Pell: “I make substantial allowance for your good character and otherwise blameless life.”
Remarkably, almost everyone was able to hear all of Kidd’s words at the same time Pell did. The chief judge explained his decision to let the ABC broadcast his sentencing remarks as “simply a clear demonstration of transparent and open justice and an accessible communication of the work of the court to the community of a case of interest.” It’s surely no coincidence that he had recently seen for himself how dangerous it can be to leave the communication of Pell’s fate to courtroom journalists. Two weeks earlier, the reporting of Pell’s sentencing hearing — where lawyers and judge debated the ground rules for punishing him — was largely botched. Journalists’ live-tweeting of single sentences or phrases without any context led some to think that Pell’s counsel had admitted his client’s guilt and others to attack him outside the courtroom.
By contrast, last week’s rare instance of very modern open justice sits well with studies that suggest that frustration about sentences switches to satisfaction when members of the public hear the judge’s reasons directly, rather than from the media. In Pell’s case, the immediate benefits were exemplified by Waleed Aly’s celebrated take the next morning. “A judgement is not an act of advocacy,” Aly explained. “It is not an essay arguing a single point relentlessly until its inevitable conclusion, but the balancing of competing interests and principles.” Much the same could be said for Aly’s own essay, which puts the one-sided advocacy that has largely dominated media reporting of Pell’s case to shame.
The discussion of Pell’s sentence and Kidd’s reasons for it may bring another, much more fraught, public benefit. Freed of the usual tropes about whether or not the judge “got it right,” Australians are now well placed to debate whether or not the sentencing law Kidd applied is fit for purpose. Sarah Krasnostein, the author of a recent critical report on how Victorian judges sentence child sexual abuse, thinks not. “I cannot agree,” she writes in the Saturday Paper, “that ‘good character’ should be mitigating when that same good character facilitated the commission of the offence.”
She isn’t alone in questioning the High Court’s 2001 ruling. The two dissents in the case argued that “there must come a point where the ‘bad’ outweighs the ‘good’ in the sentencing process.” Seven years later, the NSW parliament barred sentencing judges from taking account of a child sex offender’s good character or lack of prior convictions if they were “of assistance to the offender in the commission of the offence.” On the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, Victoria adopted the same rule in 2018, in time to cover Pell’s trials.
But Pell’s prosecutor, Mark Gibson, told Kidd that the new rule didn’t apply to Pell. Neither Gibson nor Kidd explained why, but it is clear that the rule is a tricky one. How can we tell if a religious leader’s abuse was “assisted” by his lack of criminal charges? Does the rule apply if the offender’s “good character” reflects things like ministering to childless adults? Or if, as in Pell’s case, his character witnesses speak to his compassion or advocacy in the decades after the abuse?
The real questions go deeper. Why should we give criminals lower sentences just because they did good at some other point in their life? Should it matter if an offender was a good worker? Or a bad or indifferent one? Was loved or respected by many? Or a friendless loner? Pulled a child from a fire? Or tried and failed? Or didn’t try? If such things do matter — say to the offender’s prospects for rehabilitation or reoffending — then why should we ignore them if they also facilitated the offender’s crime?
Australian sentencing law is full of difficult questions like these that Australian judges often strive to avoid answering. Justice Michael Kirby is a notable exception.
Back in 2001, in discussing Nield’s sentence of the priest, he asked a lot of very difficult questions. Was Judge Nield right to emphasise that the priest before him had not only sexually abused children but, in doing so, breached his vow of celibacy, sinned against his religion’s teachings and failed to fulfil his ministry? Kirby, somewhat ahead of his time, asked about the culpability of the Church itself, which — as in so many other cases — learnt of the priest’s offending at an early stage but simply shuffled him from congregation to congregation. But Kirby’s startling point was that the Church’s failings may reduce the priest’s culpability: “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.” He even asked, as some now do, whether the demands the Church makes of all of its priests are also a factor: “in a sense, people in this position are, in part, victims themselves; that they are denied any sexual life and they are in a situation where they are in a position of temptation and it is all coming from the one source.”
To say the least, Australia was not ready for such a discussion. The priest’s various prosecutors and lawyers — three of whom are now judges, including Roy Ellis, who recently cleared Bishop Wilson of his conviction for failing to report child abuse — all declined to pursue Kirby’s points in the High Court. After Kirby and Ian Callinan nevertheless canvassed them in their judgements, they were criticised by two other justices for needlessly entering dangerous waters. The following year, Kirby found himself the victim of false claims of sexual misconduct read into the parliamentary record by senator Bill Heffernan, bolstered by selective quotes from Kirby’s ruminations about how to sentence priests.
Despite questioning whether Kirby’s thoughts could fit with either traditional legal principles or current community standards, Justice Michael McHugh agreed that the hard issue of how to sentence priests is of “great importance.” “Sooner or later,” he wrote, “it will have to be addressed by this Court.”
As everyone learnt simultaneously at 11.08am last Wednesday, Peter Kidd sentenced George Pell to imprisonment until mid February 2025. While the four-year term Kidd gave Pell for “sexually penetrating” J, the surviving choirboy, was unsurprising, the chief judge was less harsh than I expected on the other four charges of “indecent acts,” which carried the same maximum sentence. Despite their involving equally damaging (albeit different) abuse, two different victims and two separate incidents, Pell’s other four crimes added just two more years to his sentence and less than that to his non-parole period.
As Kidd explained, though, Pell’s sentence was lowered because of what he would experience in prison, not only because of notoriety — which he shares with Carl Williams and, more recently, Tony Mokbel — but also because of prisoners’ hatred of child sex offenders. To manage this, Pell would be kept in isolation and, Kidd feared, could die there. Instead, the chief judge’s mercy almost guarantees that Pell will be out on parole in late 2022 when he is eighty.
Chances are, Pell will be out earlier. His appeal against conviction will be heard in early June, although, if the High Court gets involved, his final fate may not be determined before next year. Pell may also seek (and perhaps get) bail pending his appeal. And, if all else fails, he may appeal against Kidd’s sentence. While I don’t think Pell can plausibly challenge his six-year sentence as excessive, he has one good argument to make at a sentencing appeal.
In what is rightly the most celebrated part of his remarks, Kidd rejected Pell’s argument that he should be sentenced as if he simply abused two boys he didn’t know. While the chief judge conceded that Pell had never actually met the two choirboys and was neither their priest nor “master,” he held that it wasn’t sheer chance that placed the three of them together in the sacristy that day:
Adults working at institutions no longer stand as mere strangers in relation to children who attend those institutions. This is because the institutional setting affords these adults with an opportunity to interact with children within that setting, an opportunity they would not have as a mere stranger.
Working without clear precedents, Kidd held that this institutional setting heightened Pell’s crime because it breached the trust the boys’ parents placed in the Church. In any case, he told Pell, the boys themselves trusted the Church and “you breached that trust and abused your position to facilitate this offending.”
Kidd’s analysis of the reality of the relationship between choirboys and church officials in St Patrick’s Cathedral in 1996 is, I believe, impeccable. But it is also legally vulnerable, because Kidd (who prosecuted for decades before he became chief judge of Victoria’s busiest trial court) may have overstepped the line that separates prosecutor and judge. The problem is that Pell’s prosecutor, Mark Gibson, made some important — and controversial — choices when he charged Pell with “sexual penetration of a child under sixteen,” which in 1996 carried a maximum penalty of ten years in prison. Based on J’s account, Gibson could have brought much more serious charges against Pell.
As Kidd acknowledged in his sentencing remarks, Gibson could have charged Pell with raping J, an offence that (then and now) has a maximum penalty of twenty-five years in prison. Obviously, J didn’t (and indeed couldn’t) consent to Pell placing his penis in his mouth. But Gibson chose not to bring that charge. And that means, as Kidd acknowledged, he couldn’t punish Pell for rape. Instead, Kidd followed a landmark sentencing ruling from Australia’s High Court in 1981 that required Kidd to pretend that there was no rape, even though there clearly was. In an awkward footnote that wasn’t read out on TV, Kidd explained that he would pretend that Pell was somehow unaware that J didn’t consent.
But Kidd failed to address another option that Gibson didn’t take: charging Pell with sexual penetration of a child who is under his “care, supervision or authority,” an offence that in 1996 carried a maximum penalty of fifteen years’ imprisonment. Gibson’s choice meant that Kidd was required to ignore any evidence that the two choirboys were under Pell’s “authority.” And that is difficult to square with Kidd’s statements to Pell that “the full weight of your authority and position of power must have been very obvious to your victims, and to you”; that “the brazenness of your conduct is indicative of your sense of authority and power in relation to the victims”; and that “the authority you carried within the Cathedral setting in relation to the choir boys, carried with it a significant responsibility of trust, not to do anything to the detriment of the boys.”
I can only assume that Kidd was unaware of this limit on his sentencing discretion. If he had been aware, he surely would have been at pains to distinguish his remarks about abuse of trust and position from the question of whether J was under Pell’s “care, supervision or authority.” Instead, he made it clear that this issue was a key factor in Pell’s sentence:
Your obvious status as Archbishop cast a powerful shadow over this offending. Not only do I consider that you offended in breach of your relationship of trust, and in abuse of your power and authority, I would characterise these breaches and abuses as grave. You were the Archbishop of St Patrick’s Cathedral — no less — and you sexually abused two choir boys within that Cathedral. This connection and the depth of the breaches and abuses is self-evident.
In short, Kidd punished Pell, not only as a priest — the approach Kirby questioned decades earlier — but also as an archbishop.
I think these events ought to prompt more public debate. Why didn’t Victoria’s public prosecutor charge Pell with sexually abusing a child under his authority, or with rape, exposing him to the much higher penalties Victoria’s parliament specifies for such crimes? And, if a prosecutor failed to bring charges that fit Pell’s crimes, is it right, as the High Court ruled four decades ago, that his sentencing judge should be forced to pretend that the facts of the offence are something other than he believes them to be? As well, should an offender benefit at a sentencing appeal if both prosecutor and sentencing judge fail to fulfil their respective roles? Like most sentencing questions, these are very difficult ones to answer.
For reasons I’ve argued elsewhere, I don’t think any of these questions is likely to be resolved in Pell’s case. Rather, chances are he will be acquitted altogether by Victoria’s Court of Appeal sometime this year. It would be a pity, though, if that outcome prevents full debate about the many difficult questions Pell’s case raises, questions about how to sentence priests, lowly or high, that the High Court dodged in 2001 and is yet to return to. •