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District Court 23 January 2015

R v Denham

[2015] NSWDC 21

Sexual offences
CRIMINAL LAW SENTENCE HISTORICAL CHILD SEX OFFENCES MULTIPLE OFFENCES CATHOLIC PRIEST AGGRAVATING FEATURES

Citation: R v Denham [2015] NSWDC 21
Court: District Court of New South Wales
Date: 23 January 2015
Judge: H. L. Syme DCJ

Background

The offender, a Catholic priest and teacher born in September 1942, committed multiple sexual offences against male children between 1968 and 1986. He exploited his positions of religious and educational authority to gain access to victims, who were aged between 11 and 17 at the time of the offending. The victims came predominantly from devout Catholic families, which placed them in a position of particular vulnerability and trust in relation to the offender.

In 2008, the offender was arrested and ultimately pleaded guilty to 29 separate offences involving 39 male complainants. Sentence was passed in 2010, resulting in a total term of 19 years and 10 months with a non-parole period of 13 years and 10 months. Following subsequent publicity about those proceedings, a further 18 men came forward and made similar complaints, leading to a new set of charges.

The offender initially pleaded not guilty to the second set of charges but entered a late guilty plea on the day trial was to commence in July 2013. He pleaded guilty to 25 separate charges, with a further 23 charges taken into account on 14 Form 1 schedules. The 2015 sentencing decision addressed these later charges and considered how the new sentences should sit alongside the existing 2010 sentences.

  • How the sentences for the current offences should interact with the existing 2010 sentences, applying the principle of totality (ensuring the overall sentence is just and appropriate when viewed as a whole)
  • Whether to impose individual sentences or an aggregate sentence for the current charges
  • The weight to be given to the various aggravating features of the offending, including planning, abuse of authority, and the use of threats
  • The extent to which the charged offences were representative of a wider course of criminal conduct
  • The relevance of the offender's age, health, and the real possibility that he may die in custody
  • The appropriate treatment of the late guilty plea and any discount to be applied

Decision

Syme DCJ found that the current offences were serious in their own right and, when viewed together with the 2010 offending, demonstrated an even wider pattern of predatory behaviour than had previously been understood. The charged offences were treated as representative of repeated conduct rather than isolated incidents. Aggravating features common to most offences included the systematic targeting of vulnerable children from religious families, exploitation of positions of authority as both priest and teacher, the use of threats to ensure secrecy (including threats of physical harm and social humiliation), and evidence that the offender's conduct was known to church authorities who took no effective action.

The court found that planning was a significant aggravating feature. The offender had, on the court's findings, used knowledge of the institutional hierarchy and the children's likely inability to be believed to facilitate his offending. The fact that complaints made to school and church authorities were ignored, and that the offender was aware of this and at times explicitly taunted victims about it, was treated as part of the broader context of planned exploitation.

Her Honour considered the offender's age (73 at sentencing) and medical evidence that he suffered from health conditions that could affect his life expectancy. The possibility of death in custody was acknowledged as a relevant factor, though not one that overrode the objective gravity of the offending or the need for the sentence to reflect the totality of the criminal conduct. A late guilty plea was given some, though limited, weight given that it was entered on the eve of trial.

An aggregate sentence was imposed for the current charges, with consideration given to the interplay with the existing 2010 sentence. The cumulative effect of both sets of sentences was structured so that the total time to be served reflected the full scope of the offending without producing a sentence that was disproportionate when viewed in its entirety.

Orders Made

  • An aggregate sentence was imposed for the current 25 charges, with a non-parole period of 13 years
  • The offender's first eligibility for parole was set at 22 January 2028
  • The combined effect of the 2010 and 2015 sentences results in a total period in custody of 19 years, 5 months, and 9 days, followed by 5 years of supervision on release
  • Supervision on release was placed with the Probation and Parole Service

Key Takeaways

  • Where an offender is sentenced in separate proceedings for offences committed in the same general period and circumstances as earlier offences, the court must consider the totality of all offending to ensure the combined sentences are proportionate and not crushing.

  • An aggregate sentence, rather than individual cumulative sentences, was appropriate given the large number of charges and complainants, and produced a more coherent and manageable sentencing outcome.

  • The District Court treated the offender's exploitation of institutional structures, including the knowledge that complaints to church and school authorities would be ignored or suppressed, as a significant aggravating feature going to planning.

  • Representative charges, where agreed facts confirm that the charged conduct was repeated many times, attract findings that the offending was far from isolated, and sentences are calibrated accordingly.

  • Advanced age and declining health are relevant considerations in sentencing, but the possibility of dying in custody does not, of itself, require a reduction in sentence where the objective gravity of the offending is high.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): s 79 (Buggery, maximum 14 years); s 81 (Indecent assault, maximum 5 years)

Cases
- R v Denham [2009/10327] (2 July 2009, NSWDC) (the 2010 sentencing decision for the first set of offences)
- R v PWH (unreported, NSWCCA, 20 February 1992)
- R v DCM (unreported, NSWCCA, 26 October 1993)
- MSK [2006] NSWCCA 381
- R v Gommesson (NSWCCA, 15 August 2014)