As Chief Judge Peter Kidd steadily reads his sentencing of George Pell, the author sits among those assembled in court, watching the cardinal, and considering the nature of power in the justice system. By Sarah Krasnostein.
When it’s all done, and Courtroom 3 has emptied like a sigh, a woman will turn to the sketch artist as we descend in the elevator and remark how much weight George Pell has lost since his previous appearance.
A stone at least.
Don’t think he’ll survive it.
Pell had not looked particularly thin to me, though he did appear, from where I stood next to the dock, to be almost imperceptibly deflating over the hour it took Chief Judge Peter Kidd to sentence him – now a serious sexual offender – to six years in prison with a non-parole period of three years and eight months.
9.30am. They entered the County Court the moment the building opened, past signs that read “Churches must be accountable” and “You’re never too old to be arrested for raping children”. Now the crowd clustered in front of the courtroom hushes as the door opens and a guard asks everyone to form a line. Instead, the crowd contracts slightly, changing shape just enough to squeeze into the room.
“Line didn’t work, did it?” an elderly man says, smiling, to the guard.
“It’s like Myer’s sale…” she replies, waving us in.
An overflow room is opened. Courtroom 3 immediately fills with survivors, their supporters, lawyers, journos. Journalist Louise Milligan sits front and centre, behind the bar table. Around me, at the back, the sounds of something that only mimics small talk, but which is the instant bonding of shared experience.
Interesting how it’s come full circle.
Were you a day boarder?
I promise not to get upset. I promise not to call out.
How old were you?
I was 16.
I know the room. Used to play there as a kid.
What a waste of lives.
The words have the unmistakeable timbre of vindication, a tone that contains all the novelty and relief and rage of finally being able to tell.
A television camera focused on the bench stands in the now-empty jury box like a long-legged beetle, ready to broadcast the sentence of one of the Catholic Church’s most senior figures to the world. At seven minutes to 10, the room spontaneously quiets before the chatter reignites. Again, at five minutes to 10, at three minutes to 10; a silence that feels like held breath. Then the tipstaff soberly calls for attention. No talking. No whispering. Complete silence. Normal courtroom protocol, if you wish to stay until the end of proceedings. Now the scrape of a key in a lock and the swish of all heads simultaneously swinging towards the back of the room as 77-year-old Pell is walked to the dock between guards. He makes a point of not turning away from the world’s gaze.
Years ago, I remember my shock the first time I heard sentencing remarks in a child sexual assault case. It sounded not unlike the way one might run through the minutes of last week’s team meeting. Of course, this is the purpose of our criminal justice system – to replace the heart with the head. And yet, public confidence in the administration of criminal justice cannot be maintained without adequately accommodating both. Pell’s sentence is nothing like the first I heard. Aside from having great intellectual weight and being meticulously structured – painstaking in its balanced consideration of matters of fact and law, aggravation and mitigation – it is delivered steadily by Justice Kidd, with just enough emotional force. It feels the way an electrocardiogram looks.
For the purposes of determining a sentence, the seriousness of a particular crime is measured according to the harm caused and the offender’s moral culpability. During the 70 or so minutes in which he is sentenced, Pell maintains an expression that ranges from mild to moderate interest. But that is an all-purpose expression in a man of his vintage, and Kidd’s unrelenting waves of words have an impact. To refer, directly and of necessity, to Pell’s erect penis, to his masturbation, to the grip of Pell’s hand on the head of a flailing and terrified child, is to reach into this bundle that once contained an all-powerful human, past his buttoned beige blazer, through the fine black fabric of his shirt, through flesh and rib to the very electrodes of the pacemaker controlling his now speeding heart.
So, although the outcome of the impossible task of sentencing him today will leave most dissatisfied as either too much or not enough, it will not be nothing. To have arrested, charged, tried, convicted and sentenced one of the Catholic Church’s most senior officials shows that, finally, it is no longer above the law.
For many, to hear the proven facts of Pell’s offending is to learn them for the first time. How J saw R’s terrified face, heard him call out “No!” and “Help!”, how the boys were sobbing then whimpering, how Pell heard this crying and told them to be quiet. And because I cannot take my eyes off him, I see Pell’s blinking accelerate, see him bow his head before raising it again. I wonder how his defenders are receiving this information.
Victoria affords the mental health of rape victims some protection by allowing them to give their testimony in closed court. So, while the public did not hear the witness testimony, the jury – who we entrust as our representatives – did, and they found it sufficiently compelling to convict Pell beyond reasonable doubt. And still Pell’s powerful mates deride the outcome.
In 2016, I wrote a report for Victoria’s Sentencing Advisory Council that asked why sentences for the offence of sexual penetration of a child under 12 were often lower than those for rape involving adult victims. Pell’s victims were under 16. The quickness of his powerful defenders reminded me of this finding: “The current approach to sentencing for the offence … suggests that outdated concepts of harm persist in the criminal justice system, and that such concepts of harm are not confined to the courts, but represent a broader, systemic issue. It may be, for example, that such concepts of harm reflect deeply rooted and historical power imbalances.” Not surprising then, these specific supporters defending this specific offender convicted of these specific crimes.
Regarding the question of power, the man remains Cardinal Pell outside this room, and so he is called Cardinal Pell inside it. This grates some of the assembled survivors, but only momentarily. His counsel had argued for a distinction between Pell the man who offended and Pell the archbishop. Such distinction was “roundly rejected”. Pell’s role in the Mass wasn’t over until he was divested, so the offending occurred during the recessional. In light of the parental trust, the required reverence and the institutional impunity that facilitated his offending, it is, perhaps, a very important thing indeed to refer to the sexual offender listening now to his sentence as Cardinal Pell. The sermoniser is now audience.
Interesting how it’s come full circle.
And yet. Other factors must go into the calculus. Instinctive synthesis, the method by which a Victorian judge tailors a bespoke sentence, involves weighing all relevant and conflicting considerations simultaneously. What Kidd will add for Pell’s staggering breach of trust and abuse of his position of authority, he will partially subtract for Pell’s age, the improbability of future offending, his “otherwise good character”, the delay that will see him imprisoned as an old man. Reasonable minds will differ on the translation of these factors into units of time, but current sentencing practices, another relevant consideration, are clear: sentences for these crimes would – for, say, an accountant not an archbishop – fall between two to five years.
Pell reserves his greatest show of emotion – by which I mean a momentary lowering of the chin, the faintest flush down his cheeks and the compression of his little lips into a puckered ledge – for Kidd’s recounting of his professional trajectory, his “life’s contribution”.
“I have received a number of character references … They speak of man who dedicated his life to service, in particular to vulnerable members of the community. They describe a compassionate and generous person, especially to those experiencing difficulties in their lives, someone who has a deep commitment to social justice issues and the advancement of education for young people.”
I cannot agree that “good character” should be mitigating when that same good character facilitated the commission of the offence. Or that the delay, which is a common, continuing consequence of the terror instilled in child rape victims, should be considered in mitigation, particularly when it allowed the offender to socially flourish during the best part of his life. Or that current sentencing practices should be at all anchoring for an offender of unprecedented authority and trust.
Now, the temperature starts to drop.
I promise not to get upset.
With the conclusion of Kidd’s remarks, everyone understands that Pell may be released after three years and eight months. The tipstaff’s warning holds, but only just. Around me, a man with a white beard winces as though taking a body blow and a woman digs her face into her palm, weeps behind red nails. The man in front of me whips his head around, eyes flaring in a way that makes his pupils contract to pinpoints. A man in the centre of the gallery stares towards the dock with a frown arcing like a rainbow. Kidd sits for one moment after discharging his impossible task, hands framing his mouth, mirroring the long white tabs on his jabot, before saying: “Cardinal Pell can be taken away.”
This article was first published in the print edition of The Saturday Paper on March 16, 2019 as "Full circle".
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