Paedophile priests and creative sentencing options

Judge Michael Finnane

Justice Michael Finnane of the NSW District Court has long been one of my favourite legal characters.  But then I’m not a criminal defence lawyer.  If I was I’d almost certainly have a different opinion, as this SMH story notes:

But it is as the state’s most punitive District Court judge – the man who jailed the gang rapist Bilal Skaf for 55 years and the paedophile Robert ”Dolly” Dunn for 30 – that Michael Finnane has made his name. His reputation has prompted defence lawyers to try in vain to move their clients to other courts, and for good reason.

A Herald analysis of the Court of Criminal Appeal’s published decisions since January 2008 shows Judge Finnane is the state’s toughest sentencer.

In the past two years, he has had a total of 37 years stripped from his sentences because the state’s top criminal court deemed them excessive, at a time when it is increasingly reluctant to do so.

Judge Finnane’s decisions were overruled 16 times – 10 of them for excessive sentences.

Even his oldest legal mates like solicitor Greg Walsh try to avoid having a matter heard by Finnane J if they get half a chance.  His Honour explained the extent of his relationship with Walsh in recent reasons for decision for decision in which he refused an application that he disqualify himself  for reasonable apprehension of bias from hearing charges against one of Walsh’s paedophile priest clients:

I have known Mr Walsh personally for more than 30 years. When I was a barrister, he would brief me to appear for his clients from time to time. For the most part I appeared in civil cases.Mr Walsh has always a done a considerable amount of criminal law work in his practice and in the few years before 2000, when I became a judge, he developed a considerable practice appearing for Catholic priests and brothers who were charged with child sex offences. At one stage, he frequently briefed Mr Chester Porter QC to appear for his clients. He also briefed other barristers to appear for them and he appeared for some of them directly. To my knowledge he has appeared in such cases in New South Wales, Victoria, Queensland, Tasmania and Western Australia. From time to time, over the years, I have met him on a social basis and have discussed in a broad sense this part of his practice.

Within the past few years, he has borrowed from me a set of robes I had kept from my days as a junior counsel, my barristers wig and some jabots so that he could appear as counsel in the Supreme Court of Tasmania in a child sex case involving a priest or a brother. He discussed this briefly with me.

Greg Walsh’s bias application against his old mate Finnane J arose from a jocular conversation at a morning tea at the District Court following the swearing in of a new judge. On Walsh’s recollection you can certainly see why he was concerned that His Honour might not bring an entirely unbiased mind to bear on the question of sentencing his priestly client CUR24 if a jury ended up finding him guilty of any of the very large number of child sexual abuse charges due to be heard before Finnane J. Unfortunately for Walsh’s client, His Honour’s admittedly hazy recall of the conversation was different enough to allow him to adopt the robust attitude that the High Court says judges should apply towards bias disqualification applications. We wouldn’t want to encourage solicitors to manufacture spurious bias claims against trial judges merely for the purpose of cynical forum shopping, would we?

Anyway, whether Walsh’s recollection or that of Finnane J is the more accurate is currently a moot point. His Honour refused to disqualify himself. Nevertheless His Honour’s version of his morning tea conversation with Greg Walsh is well worth revisiting:

After the CUR24 case commenced, I cannot recollect discussing child sex cases with him in any way except perhaps in passing. If I bumped into him in the street, he might mention that he had another case. I have never discussed CUR24 with him at all.

I can remember Mr Walsh being present at the swearing-in and at the morning tea ceremony and I recollect him telling me at the morning tea ceremony that he was particularly there because the new judge, like him, was a solicitor.

I have considered Mr Walsh’s claims about what I said to him at the morning tea but I am unable to agree that I used the words attributed to me, apart perhaps from greeting him on the basis that he was appearing for another paedophile, something that he then confirmed. That greeting was a friendly one. I am absolutely certain I did not tell him that I had a view that all paedophiles should be put on an island and starved to death.

It is my memory that some years ago, during the hearing of the paedophile reference at the Royal Commission into the New South Wales Police service, a psychologist was asked by the Commissioner, Wood J, what he thought could be done to rehabilitate paedophiles. My recollection is that he expressed the view that they should all be placed on an island. I have no memory that he considered the island should be a desert island or that they should be starved to death. My memory may be an imperfect one and I have not had access to any Royal Commission transcript to refresh my memory.

This view, understandably enough, was rejected by the Commissioner. I did not take this man to be making a serious suggestion that paedophiles should be exiled. Rather, it seemed to me that he was expressing a view that rehabilitation was very difficult. He was engaging in a form of hyperbole. I feel confident that Wood J did not have a view that the witness had a literal view that paedophiles should be marooned.

It may be that I recounted to Mr Walsh something of what this man had said but I cannot ever recollect this man talking about starving them to death. That is what makes me confident that I did not at any point express such a view, which I would regard as abhorrent.

I think I may have said, “Greg, I heard someone say that what should be done with paedophiles is to put them all on an island”, but I doubt that I said this as the second thing I said to him when I met him. It seems probable to me that we said more to one another than what he has deposed to, because my experience of social occasions is that there is a great deal of small talk in even the briefest of conversations.

I also have never expressed an opinion to Mr Walsh that all persons charged with paedophile offences are guilty. It is perfectly obvious that many of those who are charged are found not guilty and in the case of SKA v the Queen (reported in ¹ NSWCCA 186; ²HCA11), I expressed the view that the accused should not have been convicted at all. This view was rejected by the Court of Criminal Appeal and the sentence I imposed on SKA was doubled.

I do not know how Mr Walsh came to the conclusion that I made the comments he attributes to me. I also do not understand how he could possibly believe that I had a personal view that pedophiles should be put on a desert island and starved to death. Whatever was said by me to him was said in passing at a noisy social function. It was not a considered statement of opinion, such as might be expressed by someone at a seminar or in a newspaper article.

It seems probable to me that he has misunderstood what I did say. It seems clear that he did not at any time during this brief conversation ask me what I meant or whether I was serious in what I said. At no point did he raise with me my views on sentencing. If he was really concerned by what I said, I would have expected him to have raised it with me.

As far as I can see, the psychologist expert witness’s alleged opinion about paedophiles’ rehabilitation prospects seems a little more pessimistic than the research would justify.  Even if correct, most people would probably regard His Honour’s proposed punitive regime as reported by Walsh as a tad harsh.  Surely a parachute drop of dry bread and water every couple of days would need to be part of the sentence.  Anyway, whoever’s recollection of the morning tea is correct, we can be very confident that CUR24 isn’t looking forward to being tried before Finnane J.  In fact one suspects an appeal may now have been filed.

1. 2009[↩]
2. 2011[↩]