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13
Court of Criminal Appeal 16 December 2016

Denham v R

[2016] NSWCCA 309

Sexual offences
CRIMINAL LAW APPEAL SENTENCE HISTORICAL SENTENCING DURING PERIOD OF OFFENDING NON PAROLE PERIODS TYPICALLY COMPRISED 35

Citation: Denham v R [2016] NSWCCA 309
Court: Court of Criminal Appeal
Date: 16 December 2016
Judge(s): Payne JA; Fagan J; N Adams J

Background

The appellant was a former Catholic priest and schoolteacher who committed a large number of child sexual assault offences between approximately 1968 and 1986 against students, altar boys, and parishioners in the Newcastle Maitland region. His victims, totalling 57 across two sets of proceedings, were predominantly pupils at a Catholic boys' high school in Newcastle. He was 67 years old at the time of his first sentencing.

Two separate sentencing proceedings were conducted in the District Court by Judge Syme. The 2010 sentencing, which arose from the original police investigation, covered 39 victims and imposed an individual and cumulative sentence. After that 2010 sentence was handed down, a further 18 individuals came forward, leading to a second round of charges and a 2015 sentencing. Together, the two sentences produced an effective non-parole period of 19 years, 5 months and 9 days, with a balance of term of 5 years. The appellant became eligible for parole on 22 January 2028.

The appellant sought leave to appeal against both sentences on four grounds.

  • Whether the sentencing judge failed to properly apply the sentencing principles and practices existing at the time of the offending, particularly the historical range for non-parole periods as a proportion of the head sentence
  • Whether the sentencing judge gave insufficient weight to the appellant's lack of offending since 1986 when assessing rehabilitation and likelihood of re-offending
  • Whether the sentencing judge erred in finding the offences were aggravated by being part of a planned or organised criminal activity under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the overall sentence and effective non-parole period were unreasonable or plainly unjust

Decision

Historical sentencing practices (Ground 1): The Court confirmed that, during the period of offending (1968 to 1986), non-parole periods in comparable cases typically comprised 35 to 50 per cent of the head sentence. The primary judge had erroneously applied this principle in reverse, treating the parole period (rather than the non-parole period) as comprising 35 to 50 per cent of the head sentence. This produced a non-parole period of approximately 70 per cent of the total sentence, and the error carried through into the 2015 sentence. Leave to appeal was granted on this ground, and error was established.

Rehabilitation and re-offending risk (Ground 2): Both the 2010 and 2015 sentencing judgments expressly acknowledged the appellant's absence of offending since 1986. The Court found that the complaint amounted to a challenge to the weight the primary judge assigned to that factor, not to any legal error. No error was established.

Planned or organised criminal activity (Ground 3): The Court found that the 2015 judgment should not be read as having made a formal finding of an aggravating circumstance under s 21A(2)(n). Even if such a finding had been made, the Court held the error would have been immaterial: the degree of planning involved increased the relative seriousness of the offending under s 21A(1)(c), so the relevant circumstance of aggravation was present in any event.

Re-sentencing: Having identified error on Ground 1, the Court was required to independently re-exercise the sentencing discretion. It examined comparable historical cases but found that the appellant's offending was significantly more serious than any case of its kind dealt with during the relevant period. Accordingly, the historical sentencing pattern did not demonstrate that a lesser sentence was warranted. The Court noted that, in properly applying historical practice, any revised balance of term would likely have been longer than that imposed by the primary judge. No lesser sentence was warranted, and the appeal was dismissed.

Orders Made

  • Time for filing the notice of appeal and application for leave to appeal extended to 24 May 2016
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, for historical child sexual assault offences committed between approximately 1968 and 1986, non-parole periods were typically set at 35 to 50 per cent of the head sentence, not the other way around. Reversing this proportion constitutes an identifiable sentencing error.
  • Establishing error at the sentencing stage does not automatically produce a more favourable outcome on resentencing. Where the offending is so serious that no comparable case from the relevant period exists, the historical sentencing pattern cannot anchor a conclusion that a lesser sentence is warranted.
  • A challenge to the weight a sentencing judge gives to an offender's post-offending conduct, such as an absence of reoffending, does not disclose legal error.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, even where a specific aggravating factor under s 21A(2)(n) is not formally established, a high degree of planning may still increase the objective seriousness of the offending under s 21A(1)(c), producing an equivalent result.
  • In dismissing the appeal, the Court declined to specify what higher sentence it would have imposed, following the approach in Abdulrahman v R [2016] NSWCCA 192, noting that a correctly calculated balance of term would have been considerably longer than the one actually imposed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 53A
- Crimes Act 1900 (NSW), ss 61E, 79, 81
- Criminal Appeal Act 1912 (NSW), s 5
- Parole of Prisoners Act 1966 (NSW)
- Parole of Prisoners (Amendment) Act 1970 (NSW)
- Probation and Parole Act 1983 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Abdulrahman v R [2016] NSWCCA 192
- Moore v R [2016] NSWCCA 185
- AJB v R [2007] NSWCCA 51
- Bradbery v R [2008] NSWCCA 93
- CPW v R [2009] NSWCCA 105
- Magnuson v R [2013] NSWCCA 50
- MPB v R [2013] NSWCCA 213
- Henderson v R [2016] NSWCCA 8
- McIntosh v R [2015] NSWCCA 184
- Pearce v The Queen (1998) 194 CLR 610
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- R v AB (No. 2) (2000) 117 A Crim R 473; [2000] NSWCCA 467
- R v Maclay (1990) 19 NSWLR 112