A Sydney court has found that former Adelaide Catholic Archbishop Philip Wilson guilty of concealing a crime. This is groundbreaking. Not so much in a legal sense, but because of the implications for other officials of institutions where sexual abuse is alleged, or has been found to have taken place.

No doubt this finding, and the way in which Magistrate Robert Stone has interpreted and applied the law, will be the subject of an appeal to the New South Wales District Court, or even the Supreme Court if the appeal is purely about the interpretation of the law. But one immediate issue is penalty. There have been calls for Wilson to be imprisoned. But the matter is not so simple.

Wilson was found guilty of an offence in the New South Wales Crimes Act and termed “concealing an indictable offence”. Section 316 of the NSW Crimes Act reads:

If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

Stone focused on the knowledge Wilson first acquired in 1976, and which was subsequently confirmed over a number of years by church members, when a boy told him a Hunter Valley priest James Fletcher had sexually abused him. Stone took the view that because of the number of — and reliability of — the witnesses, Wilson had the requisite intent for the offence. The defence proposition that Wilson would not believe an allegation was true unless it had been proven in court, was flawed reasoning, according to Stone. “He is hiding behind a ‘formal view’ of what ‘belief’ means in a criminal context. I do not accept that reasoning and consider it to be flawed,” Stone said.

But what will happen to Wilson now? Well, that’s not entirely clear.

In 2016, the New South Wales Court of Criminal Appeal in a case called R v El-Chami, looked at some previous examples of sentences imposed and noted there is no established sentencing range. In a 1995 case called R v Crofts, the sentence was six months’ imprisonment. In a case called R v CQD, in 2002, the sentence was also six months, and in 2008 in a case called R v Newbold the offender’s role in the offence was only of 30 minutes duration and he had served 12 months in custody for other charges, so no further penalty was imposed. El-Chami was given a term of three months’ imprisonment, but he, too, had spent time locked up pending a trial. None of these cases bears any similarity to the Wilson case it has to be said.

So when it comes to sentencing Wilson, Stone will not have a “tariff” or range, which so often guides courts in this exercise.

And what are the implications for others who were in similar positions to Archbishop Philip Wilson, who were told numerous times by credible sources about sexual abuse by individuals over whom they exercised some control?

It depends on the jurisdiction.

The New South Wales provision is broader than that which exists in Victoria and Queensland for example, where concealing a crime is only an offence if the concealer obtains a benefit. However, in 2017 Victoria introduced laws which now make it an offence to conceal sexual abuse and the ACT is looking to do the same. The differences in the laws across Australia perhaps explains why Wilson’s case is rare. In fact, the previous case of a similar type was also brought in New South Wales in 2012 against a priest who died before proceedings commenced.