STATE OF TASMANIA v PETER JOHN O’NEILL 9 SEPTEMBER 2020
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr O’Neill has pleaded guilty to seven sexual crimes that he committed against schoolboys in the years from 1981 to 1990. He deserves a prison sentence. However I am unable to send him to prison because he lives in the Australian Capital Territory, suffers from very serious medical conditions that make him unfit to travel to Tasmania, and is never likely to become fit to travel to Tasmania.
Mr O’Neill is a retired teacher. He taught at various schools and colleges in Tasmania during the years in question, when he was aged between 22 and 31. He is now 61.
Count 1 on the indictment relates to a boy who was 14 years old at the relevant time. The boy became close to Mr O’Neill, who began driving him home after school. One day the boy suffered an injury. His pain management regime involved meditation. Mr O’Neill took him to his home for meditation sessions. During one of those sessions Mr O’Neill fondled the boy’s penis until he ejaculated. This conduct was repeated once or twice a month for about a year. The charge relates only to the first of many indecent assaults on this boy. I must sentence Mr O’Neill on the basis that it was not an isolated occurrence. The victim of this abuse said nothing about it for nearly 30 years, but then disclosed it to his wife when she found him in a distressed state.
Count 2 is another charge of indecent assault. The victim was another boy. He was 15 years old at the relevant time. Mr O’Neill had become close to that boy and his mother. On one occasion, when Mr O’Neill had been unwell, the boy came to his home to help him. Mr O’Neill went to bed to rest, and persuaded the boy to get into the bed with him and to give him a hug. Mr O’Neill reached inside the boy’s underpants and fondled his penis while pushing his own erect penis against him. Again, the charge relates only to a single act, but similar contact occurred on other occasions, and Mr O’Neill must therefore be sentenced on the basis that the act charged was not an isolated act. This victim was the first to complain to the police. He was in his 40s. He did not complain earlier because he lacked the courage. He felt that he was to blame for what happened.
Counts 3 and 4 relate to a third complainant. They are both charges of indecent assault. The first of those crimes was committed when the boy was 13. The second was committed in the same year, but possibly after the boy had turned 14. Mr O’Neill befriended this boy, tutored him at his home, and began taking him on outings. Count 3 relates to an incident at Mr O’Neill’s home. He and the boy were wrestling playfully when he placed his hand inside the boy’s shorts onto his penis and left it there for a period of time. Count 4 relates to an occasion when the boy was at home alone in bed during the school holidays. Mr O’Neill dropped in, entered the bedroom, and started rubbing the boy’s bottom, then his inner thigh, and then his testicles, inside his shorts. He tried to roll the boy over but he resisted. He then asked the boy to roll over, which he did. He put his hands inside the boy’s shorts, fondled his penis, and tried to pull the shorts down, but the boy said, “No”. Mr O’Neill said something unpleasant. At that point, the boy’s mother came home and Mr O’Neill left the bedroom.
Count 5 relates to a fourth complainant. It is another charge of indecent assault. This complainant was 13 years old at the time. Mr O’Neill took him and another boy on a day trip during the school holidays. They were driving, with this complainant in the back seat and the other boy in the front, when Mr O’Neill turned around, grabbed the complainant’s leg, moved his hand to the end of the boy’s penis, and squeezed the end of his penis with his fingers.
Count 6 relates to a fifth complainant. The crime charged is now called “Penetrative sexual abuse of a child or young person”. This charge relates to a 15 year old boy whom Mr O’Neill was teaching. The boy had a fight with his parents, had nowhere else to go, and arranged to stay at Mr O’Neill’s home. On the second night of his stay Mr O’Neill pulled the boy’s trousers down and performed oral sex on him. The boy was not consenting, but the Crown accepts that Mr O’Neill held an honest and reasonable mistaken belief that he was consenting. I must therefore sentence Mr O’Neill on that basis, and not on the basis that he is guilty of rape. After this crime was committed, the boy left Mr O’Neill’s home even though he had nowhere else to live. This complainant made a statement to the police in 2017.
Count 7, the final count, relates to a sixth complainant. It is another charge of indecent assault. The complainant was only 10 or 11 years old at the relevant time. He was still at primary school. Mr O’Neill befriended the boy and his family. Mr O’Neill took on a role as the boy’s personal art tutor. This crime was committed when he and the boy were away together on an overnight trip. There was a wild storm in the middle of the night. The boy was in a separate room, but told Mr O’Neill that he was scared. Mr O’Neill went into the boy’s room and began rubbing his back and shoulders. After some minutes the boy rolled over, wanting to discourage the back massage. Mr O’Neill proceeded to rub his torso and play with his nipples. He eventually moved a hand into the boy’s underpants and used one finger to stroke the boy’s penis until he ejaculated.
These crimes all involved grooming, the abuse of trust placed in Mr O’Neill as a teacher, and the abuse of trust placed in him by the victims’ parents. They all involve predatory behaviour towards vulnerable boys. Whilst they involve only one act of oral intercourse, they involve multiple indecent assaults, including some where Mr O’Neill manipulated the penises of young boys until they ejaculated.
One of the six complainants has died. I have received victim impact statements from four of the surviving five. These crimes have had a terrible impact on all of them. In each case their education was disrupted irretrievably. They have spoken of a continuing distrust of others, feelings of unworthiness, social withdrawal, difficulty in holding jobs, suicidal ideation, intrusive recollections, flashbacks, nightmares, problems with bad temper and anger, anxiety, depression, sleeplessness, drug abuse, and homelessness. Most have needed professional assistance from counsellors and psychologists. One has been to prison. The greatest impact appears to have been on the complainant on whom Mr O’Neill performed oral intercourse. He attempted suicide twice, and was nearly successful. He has a history of self-harm. He has been diagnosed as suffering from post-traumatic stress disorder. He has been admitted to psychiatric hospitals more than 50 times.
Mr O’Neill has no prior convictions. He grew up in New South Wales. His parents abandoned him and his sister when he was 3 years old. After that he was brought up by his grandmother. He had a difficult childhood. He was sexually abused by a relative on a camping trip when he was 7 or 8. He was bullied at school. After completing his secondary education, he came to Tasmania, and became a teacher. He realised that he was gay, and struggled with that realisation. He had no close friends and sought the company of boys.
In 1996 he returned to New South Wales and commenced teaching in Cooma. In that year he had a conversation with a student who had been sexually abused, and realised the harm that he had done to his victims. There is no suggestion that he re-offended in New South Wales. As far as I know he ceased offending in about 1990. His counsel told me that he expresses full remorse for his offending, and that he feels a deep sense of shame and lives with an overwhelming sense of guilt.
Mr O’Neill weighs about 140 Kg or 22 stone. His medical problems include chronic back pain, spinal canal stenosis, urinary and faecal incontinence, sleep apnoea, type 2 diabetes, and psychotic depression. His spinal condition has resulted in weakness of his legs. He needs assistance in all forms of mobilising. He has a full-time carer, provided under the National Disability Insurance Scheme. He needs a carer to help him out of bed, to stand from a sitting position, and to attend to his personal hygiene. Various types of special equipment have been installed at his home, including equipment used to facilitate his cleaning after he has opened his bowels. He is able to travel only in his wheelchair, and only for short distances. He is unable to sit for more than a few minutes unless reclining. He is unable to stand for more than two minutes. He experiences frequent falls. He had a fall some ten weeks ago and broke two ribs.
Mr O’Neill was charged in relation to these crimes in early 2018. Since May 2018 he has been appearing in this Court by video link and by telephone. Over the last 12 months his solicitors have made thorough enquiries about ways of transporting him to Tasmania from Canberra. (He moved from Cooma to Canberra last year in order to be closer to medical specialists.) Because of Mr O’Neill’s weight, size and medical problems, he is unable to travel by conventional aircraft and unable to travel very far by road in a single day. The possibility of him travelling from Melbourne to Devonport on the Spirit of Tasmania was investigated, but rejected, apparently because appropriate arrangements could not be made. Earlier this year the possibility of him being brought from Canberra to Launceston by air ambulance was investigated. It was estimated that that would cost $25,000 to $40,000 if it could be done. As a result of the COVID-19 pandemic, the investigation of the possibility of transportation by air ambulance did not proceed.
Since Mr O’Neill has pleaded guilty to serious crimes, and deserves to be sent to prison, but is unable to be brought to Tasmania, I have had to consider whether I have the power to impose a sentence of imprisonment that can be carried out while he remains outside Tasmania.
Section 90(1) of the Sentencing Act 1997 provides, “The sentence for an offence may be imposed in open court at any time and at any place in Tasmania.” By implication, that subsection authorises me to impose a sentence only if I am sitting in Tasmania. That provision prevents me from going to the ACT and sentencing Mr O’Neill there, but it does not prevent me from sentencing him from Tasmania when he is elsewhere and appearing by telephone or by audio visual link.
However, if I were to sentence Mr O’Neill to immediate imprisonment, as distinct from imposing a wholly suspended sentence of imprisonment, no arrangements could be made for him to be taken into custody and placed in an ACT prison. The Prisoners (Interstate Transfer) Act 1982 would not apply since transfer orders under that Act may only be made upon a request under s 5(1)(a) of that Act “made by a State prisoner serving a sentence of imprisonment in Tasmania”. Mr O’Neill could not make a request to be transferred to the ACT until he had come to Tasmania and begun serving a sentence of imprisonment here.
If I were to impose a prison sentence and then issue a warrant for Mr O’Neill’s arrest, an ACT police officer would be able to arrest him pursuant to s 82(3) of the Service and Execution of Process Act 1992 (Cth), but he would then have to be brought before an ACT magistrate pursuant to s 83(1) of that Act, and the magistrate would then have to decide whether Mr O’Neill was to be released, bailed, or extradited to Tasmania. Imprisonment in the ACT would be an option only for the duration of a short adjournment. There is no legislation that enables anyone in the ACT to take an offender there into custody for the purpose of serving a Tasmanian prison sentence without extradition to Tasmania.
Since there is no realistic prospect of Mr O’Neill ever being able to return to Tasmania, and since I am not in a position to impose a prison sentence that would be served outside Tasmania, I will not sentence Mr O’Neill to immediate imprisonment. If I were to pronounce such a sentence, it would never be put into effect. It would therefore be pointless to pronounce such a sentence.
It would also be pointless for these proceedings to be further adjourned since there is no realistic prospect of Mr O’Neill ever being transported to Tasmania to be sentenced here.
Most of the usual sentencing options are either unavailable or entirely inappropriate. Mr O’Neill is physically unfit for community service. A home detention order would be pointless, even if I could impose one on a person outside Tasmania, because Mr O’Neill is largely confined to his home as a result of his disabilities. He does not have the means to pay a significant fine. A probation order would be pointless.
The only form of sentence that is realistically open to me is a wholly suspended sentence of imprisonment, even though Mr O’Neill’s crimes were so serious that he deserves to spend a long time in prison. I will impose a global sentence in respect of all seven charges. It will be a long sentence, to reflect the seriousness of Mr O’Neill’s crimes and their impact. When an offender suffers from significant physical disabilities, that is ordinarily a reason to impose a shorter sentence than would otherwise be appropriate, in recognition of the fact that imprisonment would be more burdensome for a person with serious disabilities than it would for an ordinary prisoner. However I will not take Mr O’Neill’s disabilities into account in fixing the length of his head sentence because there is no prospect of him ever being required to serve it. Although I cannot impose the punishment that Mr O’Neill deserves, it is worth observing that because of his immobility, his incontinence, his pain problems and his other medical symptoms, his life now is probably far more miserable than the lives of most prisoners.
I will not make an order under the Community Protection (Offender Reporting) Act 2005 because I am satisfied that, because of Mr O’Neill’s disabilities, he does not pose a risk of committing a “reportable offence” within the meaning of that Act in the future.
I am also taking into account Mr O’Neill’s remorse, his lack of other convictions, his co-operation in relation to these proceedings, and his pleas of guilty. However he committed dreadful crimes against multiple victims over several years and caused them an enormous amount of suffering.
Peter John O’Neill, I convict you and sentence you to five years’ imprisonment, wholly suspended on condition that you commit no offence punishable by imprisonment for a period of ten years.