Citation: R v John Sidney Denham [2019] NSWDC 212
Court: District Court of New South Wales
Date: 30 May 2019
Judge(s): Mahony SC DCJ
Background
The offender, a Catholic assistant priest, was convicted following a judge-alone trial of four historical child sexual offences committed against an eleven-year-old altar boy at Taree in 1982. The offences occurred on two separate occasions: once in the vestry following a school mass, and once in the presbytery after the offender removed the victim from a school playground.
On the first occasion, the offender indecently assaulted the victim twice, touching his genitals and anus under the pretence of an "initiation process" for altar boys. On the second occasion, the offender again indecently assaulted the victim and then committed an act of buggery (anal intercourse), causing the victim to bleed. On both occasions, the offender used threats involving God, hell, and family separation to silence the victim.
The offender was 77 years old at sentencing. He had a substantial prior criminal history and had previously been sentenced in 2010 and 2015 by another judge of the same court for separate child sexual offences. The central sentencing question was how the new sentence should relate to those existing sentences.
Legal Issues
- What was the appropriate length and structure of the aggregate sentence for the four offences?
- How should the new sentence be ordered to run in relation to the offender's existing sentences imposed in 2010 and 2015 (concurrent, partially concurrent, or accumulated)?
- What weight should be given to mitigating factors, including the offender's advanced age, medical conditions, and the passage of time since the offending?
- How should the court apply the totality principle to avoid a disproportionate overall sentence?
Decision
The court found the offending to be serious. Key aggravating features included the victim's young age and vulnerability, the significant power imbalance between a priest and a child, the abuse of religious trust, the use of threats to prevent disclosure, and the degree of planning involved (including the fabrication of an "initiation" pretext). The act of buggery in Count 4 was treated as the most serious offence, attracting a maximum penalty of 14 years imprisonment.
In mitigation, the court considered the offender's advanced age (77), multiple medical conditions, and the fact that, given his age and circumstances, his risk of reoffending was assessed as low in practical terms despite a static high-risk classification. The court also noted that the offences attracted the penalties applicable at the time of the offending, which were lower than those currently in force. Some weight was given to the offender's expressed remorse, though the court noted he had continued to deny the specific offences to his own expert.
On the question of how to structure the sentence alongside the existing 2010 and 2015 sentences, the court rejected the offender's submission that the new sentence should run entirely concurrently. The court accepted the Crown's submission that some degree of accumulation was required to reflect the distinct criminality involved. The totality principle, as discussed in cases including Mill v R and R v Todd, required the court to ensure the overall sentence remained proportionate.
The court imposed an aggregate sentence with a non-parole period of 7 years and 6 months, commencing 23 January 2022 (after the existing sentences had largely run). The practical effect was to extend the offender's existing non-parole period by 18 months, with the balance of term adding a further 6 months to any supervision period.
Orders Made
- Conviction entered on all four counts (Counts 1, 2 and 3: indecent assault under s 81 Crimes Act 1900; Count 4: buggery under s 79 Crimes Act 1900).
- Aggregate non-parole period of 7 years and 6 months, commencing 23 January 2022 and terminating 22 July 2029.
- Balance of term of 5 years and 6 months, commencing 23 July 2029 and terminating 22 January 2035.
- Release to parole not automatic; the matter is to be determined by the State Parole Authority.
Key Takeaways
- The District Court confirmed that, where an offender is already serving sentences for prior child sexual offences, a new sentence for distinct offending must reflect some accumulation rather than running entirely concurrently, in order to recognise the separate criminality.
- The totality principle requires a sentencing court to step back and ensure that the combined effect of multiple sentences remains proportionate to the overall offending, even where partial accumulation is appropriate.
- Abuse of a position of religious trust, the use of threats to silence a child victim, and deliberate planning are treated as significant aggravating factors in the sentencing of historical child sexual offences.
- Advanced age and poor health may reduce the weight given to general deterrence and reduce the practical risk of reoffending, but they do not eliminate the need for a sentence that reflects the objective seriousness of the conduct.
- Where the maximum penalty applicable at the time of historical offending was lower than the current maximum, the sentencing court applies the penalty framework that was in force at the time of the offence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 79, 81
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Mill v R (1989) 166 CLR 59
- R v Achurch (2011) 216 A Crim R 152
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Todd (1982) 2 NSWLR 517
- R v Van Ryn [2016] NSWCCA 1
- Veen v R [No. 2] (1988) 164 CLR 465