Payne JA, Fagan J, Adams J, Street CJ, McClemmens CJ
Source
Original judgment source is linked above.
Judgment (17 paragraphs)
[1]
The application for an extension of time
As will become apparent, the applicant has demonstrated, at least in one respect, legal error in relation to the decision of the sentencing judge and accordingly leave to proceed out of time should be granted.
[2]
Ground one - taking into account sentencing practices at the time of offending
The primary judge said at [57] of the 2010 judgment:
[57] I will refer to each of the offences separately, however, it is useful to look at the totality of the offending, and the context of the individual charges, as consideration will be given in due course to striking a balance between ensuring the criminality of each offence is reflected in the sentence imposed and the principle of totality. Many of the charges are individual offences, occurring separately from other actions of the offender toward each individual victim. In such cases partial accumulation will be considered in order that the individual counts are reflected as individual acts of criminality. Most of the offences fall into this category. There will be consideration given to the need for a period of supervision as part of the sentence. For that reason, the order of accumulation will roughly follow the order of the commission of the offences, with an adjustment made in the parole period ratio for the final offence to reflect a suitable proportion of the total sentence. I will as far as possible have regard to sentencing practice with respect to the parole ratio at the time of the offending, which I accept approximated a third of the total sentence, but varied, depending on the length of sentences.
The sentencing judge did not specifically make the same point in her 2015 sentence judgment but her Honour did incorporate the 2010 judgment in her 2015 sentence by reference without qualifying or correcting the statement quoted above.
The applicant submits that this passage discloses error because at the time of the offending the practice was to set a non-parole period of between one third and one half of the head sentence. That submission was based on a number of authorities.
In AJB v R [2007] NSWCCA 51 (referred to in the applicant's written submissions in the 2010 sentencing proceedings) Howie J said at [39] (Adams and Price JJ agreeing):
[39] It seems that in 1982 a non-parole period was fixed at somewhere between a third and a half of the term of the sentence. Clearly one consideration in determining that non-parole period was the seriousness of the offence and the requirement of general deterrence. General deterrence was not a significant matter in the applicant's case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct. It seems to me that an appropriate non-parole period would be 18 months because that is in my view the least period that is required to reflect the objective criminality of the offences.
In Bradbery v R [2008] NSWCCA 93 (referred to in the applicant's written submissions in the 2010 sentencing proceedings), after referring to the above passage in AJB, Mathews AJ said at [36] (Mason P and Latham J agreeing):
[36] No material was put before us as to the pattern of non-parole periods in the 1970's. I think it is reasonable to assume that it was in the same order as that which applied in 1982, namely somewhere between one third and a half of the total sentence.
In CPW v R [2009] NSWCCA 105 at [69] James J said (McLellan CJ at CL and Adams J agreeing):
[69] In my opinion, I should, in accordance with the authorities I have referred to, find that there was a sentencing practice in the 1980s of usually setting a non-parole period of between one third and one half of the head sentence and hold that the existence of that sentencing practice should be regarded as amounting to special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in sentencing the applicant for the old offences.
In Magnuson v R [2013] NSWCCA 50 Button J said at [84]-[90] (McClellan CJ at CL and Bellew J agreeing):
[84] It is true that, for over a decade, it has been clear that a sentencing judge dealing with very old offences must take into account the sentencing patterns that existed at the time of the offences: see R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481.
[85] If such a pattern is unable to be discerned, the judge should commence the sentencing process in the usual way; that is, by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence: see Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] - [71] per Howie J (with whom Fitzgerald JA agreed).
[86] Even if a sentencing judge does take an established sentencing pattern into account, a failure adequately to reflect the principle and the relevant sentencing pattern may cause the sentence to be manifestly excessive, or otherwise erroneous: see RWB v R [2008] NSWCCA 93; (2008) 184 A Crim R 453 at [24] - [26].
[87] If sentencing for offences committed at a time when the statutory ratio did not exist, sentencing judges should sentence in accordance with that fact: see AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 at [36] - [37] and Rosenstrauss v R [2012] NSWCCA 25 at [16].
[88] Having said that, a court sentencing today with regard to old offences with regard to which a different sentencing pattern can be discerned must nevertheless bear in mind that, since 1974, it has been established that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice: Power v The Queen (1974) 131 CLR 623, referred to in AJB v R and many subsequent cases dealing with the principle under discussion.
[89] Finally, in appeals to this Court, reduction has not been automatic, even if it is determined that the sentencing judge failed to advert to the principle: see, for example, Mottram v R [2009] NSWCCA 210 and RLS v R [2012] NSWCCA 236.
[90] Applying those principles to this case, I consider that a sentencing pattern with regard to sexual offences committed against children in the late 1970s and early 1980s can be established. That is founded upon five factors. The first is the statistics that were before her Honour and this Court relating to disposition of offences in 1976 and 1978. The second is summaries of cases. Some were provided by the parties to her Honour. Others are contained in other decisions of this Court dealing with this question. The third is the general increase in sentences that has occurred across the board in New South Wales over the past quarter century. The fourth is the upward movement in maximum penalties with regard to the crimes of the applicant between the period under consideration and today. The fifth is judicial memory. I shall deal with each of those factors in turn.
In MPB v R [2013] NSWCCA 213 (a case referred to by the applicant in written submissions on the appeal) Garling J said at [93] (R A Hulme J agreeing):
[93] This Court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1 to 4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]-[156]. This is factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
Similarly, Basten JA said at [26]:
[26] ... As explained in Rosenstrauss, by reference to the history given in R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340, the fixing of non-parole periods prior to the 1989 Act was heavily influenced by the remission system provided by the Prisons Regulations 1968 (NSW). A first offender was entitled to "ordinary" remission of one-third of the sentence period, which, together with "earned" and "special" remissions, could lead to a reduction of almost half the sentence. (Offenders who had been subject to earlier periods of imprisonment for three months or more were entitled to "ordinary" remission of one-quarter of the sentence.) The result was that, at least for first offenders, an effective non-parole period was usually in the range of one-third to one-half of the sentence, so as to allow a period of supervised release.
In Henderson v R [2016] NSWCCA 8 Hoeben CJ at CL, at [44]-[46] (Bathurst CJ and R S Hulme J agreeing) accepted that error had been established in a case involving the same sentencing judge as the present case:
[44] The applicant submitted that her Honour was provided with, but did not refer to, a document entitled "Sentences Imposed for Indecent Assaults Committed in the 1960s and 70s" which did include information about the objective offending and subjective circumstances of offenders. He submitted that that document, together with the statistical information, provided a discernible sentencing pattern as required by Dousha v R [2008] NSWCCA 263 and R v MJR.
[45] The applicant submitted that her Honour failed to have regard to the sentencing practice at the time regarding the relationship between the head sentence and the non-parole period. The applicant submitted that her Honour's finding that the ratio between a non-parole period and the parole period at the time of between 50% and 70% was in error. He submitted that the correct ratio was between 35% and 50% of the head sentence.
[46] The applicant's submission should be accepted.
[3]
Consideration of ground one
It is unnecessary to rehearse in detail the relevant provisions governing the parole and the early release of prisoners during the relevant period.
It is sufficient to note that at the outset of the relevant period during which the offences occurred (1968-1986) the Parole of Prisoners Act 1966 (NSW) did not prescribe a proportion between a non-parole period and a head sentence.
That Act provided for the specification of a non-parole period in sub-section 4(2):
(2) Where a person convicted as aforesaid by a court, judge or justice of an offence is sentenced to imprisonment for a term -
(a) of not less than twelve months, the court, judge or justice shall; or
(b) of less than twelve months, the court, judge or justice may,
specify a period, in any case not less than six months, before the expiration of which the person so sentenced shall not be released on parole pursuant to this Act, which period is hereinafter referred to as the "non-parole period".
Sub-section 4(2) was later amended by the Parole of Prisoners (Amendment) Act 1970 (NSW) so as to provide:
(2) Where a person to whom this section applies is, by a court, judge or justice, sentenced to a term of imprisonment and is not, at the time he is so sentenced serving a term of imprisonment, the court, judge or justice -
(a) shall, where the sentence is for a term of imprisonment of more than twelve months; and
(b) may, in any other case,
specify a period, in this Act referred to as a "non-parole period", before the expiration of which that person shall not be released on parole pursuant to this Act.
In 1983, the Parole of Prisoners Act was replaced by the Probation and Parole Act 1983 (NSW). That Act required a sentencing judge to specify either a non-probation or a non-parole period according to the length of the sentence: ss 5 and 19. In 1989 the Probation and Parole Act was replaced by the Sentencing Act 1989 (NSW).
Prior to the introduction of the Sentencing Act, a system of remissions operated such that the head sentence could be reduced by executive act by up to a half: see MPB v R at [26] and Rosenstrauss v R [2012] NSWCCA 25 at [11]. It was not until 1984 that the Probation and Parole Regulation 1984 (NSW) provided that remissions were to be applied to the non-parole period as well: MPB v R at [27]. It was as a result of the operation of the remissions system prior to 1984 that courts would generally fix the non-parole period as being between a third and a half of the head sentence; if they did not, the prisoner would be released before the expiration of the non-parole period: R v Maclay (1990) 19 NSWLR 112 at 117-118; 46 A Crim R 340 at 345 - 346.
The Parole of Prisoners Act was replaced by the Sentencing Act which prescribed a ratio between a non-parole period and a head sentence. Section 5 provided as follows:
5. Minimum and additional terms
(1) When sentencing a person to imprisonment for an offence, a court is required -
(a) firstly, to set a minimum term of imprisonment that the person must serve for the offence; and
(b) secondly, to set an additional term during which the person may be released on parole.
(2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances.
(3) If a court sets an additional term that exceeds one-third of the minimum term, the court is required to state the reason for that decision.
(4) The minimum and additional terms set for an offence together comprise, for the purposes of any law, the term of the sentence of the court for the offence.
The Sentencing Act was ultimately replaced by the Crimes (Sentencing Procedure) Act, sub-section 44(2) of which provides that:
The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
It is clear from the authorities cited above that sentences imposed during the period with which the present case was concerned involved the imposition of non-parole periods comprising between 35% and 50% of the head sentence: MPB v R at [26] and [93]; Henderson at [46].
Regrettably the trial judge, in attempting to apply these historical sentencing percentages, fell into error in using the "ratio" approach appropriate to present-day sentencing rather than the percentage of between 35% and 50% of the head sentence to which those authorities refer.
That is clear in the 2010 sentencing judgment, at [57], when addressing accumulation, her Honour said:
I will as far as possible have regard to sentencing practice with respect to the parole ratio at the time of offending, which I accept approximated a third of the total sentence, but varied, depending on the length of the sentences. (italics added)
What her Honour did, in relation to the 2010 sentence, was to impose a non-parole period of 13 years and 10 months with a balance of term of 6 years being a total sentence of 19 years and 10 months. That is, her Honour imposed a non-parole period comprising approximately 70% of the total sentence of imprisonment.
The statement quoted above from the 2010 judgment was incorporated by her Honour in her remarks on sentence for the 2015 sentence, without amendment or qualification.
In the 2015 sentence her Honour imposed a non-parole period of 13 years and an aggregate balance of term of 5 years being a total sentence of 18 years. That is, her Honour imposed a non-parole period comprising over 70% of the total sentence of imprisonment.
Plainly, having regard to the fact that the authorities the sentencing judge was attempting to follow concluded that the appropriate percentage to take into account was between 35% and 50% of the head sentence, her Honour fell into error.
Accordingly the applicant has established error in ground one.
[4]
Ground two - rehabilitation
By ground two the applicant complained that her Honour erred in failing to give sufficient weight to the applicant's lack of offending since 1986:
It is submitted that her Honour erred in failing to make a finding that the offender was unlikely to re-offend due to the fact that he had not offended since 1986 and the applicant's evidence that he ceased offending in 1986 once he realised that his offending behaviour was wrong and Dr Nielssen's evidence that this "would give a fair indication that he wouldn't offend again" (Transcript p 28) and that "he would have a low risk of re-offending" (Transcript p 29). It is submitted that her Honour erred in failing to give sufficient weight to this evidence given that the applicant had not offended since 1986 despite the opportunity to do so while employed by Waverley College; ...
The applicant submitted orally that certain psychiatric evidence, in particular, "coloured the whole of her Honour's reasoning" such that the applicant's voluntary cessation of offending was accorded insufficient weight.
[5]
Consideration of ground two
In the course of the 2010 sentencing judgment her Honour specifically referred to the fact that the applicant had not offended since 1986 and noted that lack of reoffending "can be a significant consideration to rehabilitation": [33].
Her Honour considered the applicant's own evidence that he had realised in 1986 that his behaviour was unacceptable and that he was no longer sexually attracted to young boys, but recorded her concerns about the applicant's evidence in this regard: [41].
Her Honour further referred to a number of other matters going to the likelihood of reoffending and rehabilitation:
1. the applicant's apology in court (and its manner of delivery): [42];
2. passages in a psychologist's report which revealed the applicant's lack of insight into the moral depravity of his actions: [43];
3. the applicant's age and the likelihood he would receive a substantial sentence meant that "his danger to the community will be less than before" and there is less need for specific deterrence: [45], [50];
4. the applicant's self-assessment about his rehabilitation carried little weight given his lack of insight and evidence that his behaviour was a means to "comfort his victims": [47]; and
5. the applicant was recommended for assessment for the sex offender's program while in custody and supervision upon release: [50].
It is clear that her Honour took into account the applicant's lack of offending since 1986 in making findings as to rehabilitation. No error has been shown in her Honour's approach.
In the 2015 sentencing judgment the primary judge noted that the applicant demonstrated no increased level of remorse than he did in 2010, and that there was no evidence he was in a better position with respect to his risks of reoffending: [53]; that her Honour discerned no evidence of progress as to his level of insight into the serious nature of his offences: [57]; and that his focus on his own comfort and immediate needs demonstrated a lack of remorse, contrition and understanding: [59].
The primary judge clearly took into account the lack of offending since 1986. The applicant's complaint is simply one of weight. Indeed, counsel for the applicant on the appeal expressly conceded that he could not properly submit that the sentencing judge gave the consideration no weight at all.
Ground two should be rejected.
[6]
Ground three - the planned organised criminal activity
The applicant complained that in the 2015 sentencing judgment the primary judge erred in that her findings "should be interpreted as the sentencing judge finding that the offences were aggravated in that they were part of a planned or organised criminal activity within the terms of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act".
A key feature of her Honour's judgment was as follows:
PLANNING AS A WHOLE
[30] This is a feature of the offending that this court did not fully appreciate in the previous sentence. The volume of complaints relative to this particular school, and the involvement I have found of the principal and the Wingham priest, now make a finding of significant planning and involvement of others in the criminal organisation possible to the required standard. This issue was raised with Counsel during the course of proceedings and before evidence was completed, and nothing in submissions or evidence has raised doubt. Specifically the brutality of the school, the direct complaints made to Father Brennan and the involvement of Brennan in sending students to Denham for no proper reason mean that no other logical conclusion is possible.
[31] Effectively all of these offences were the subject of long term planning, much of the planning involving these 2 other priests in the way I have described. The involvement of others allowing or facilitating the offences to occur is a significant aggravating factor of each offence.
The applicant referred to the following passage from Knight v R [2010] NSWCCA 51 at [16] (James J; McClellan CJ at CL and Rothman J agreeing):
[A] sentencing judge should not find that the aggravating factor in s 21A(2)(n) was present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning in the instant case exceeded the degree of planning which would ordinarily be expected in an offence of that kind.
The applicant submitted there was no such evidence beyond that "which would ordinarily be expected in an offence of that kind" in the present case. Her Honour's finding that Fathers Brennan and Pickin knew of and either ignored or encouraged Mr Denham's activities was insufficient to anchor a s 21A(2)(n) finding. The fact that Mr Denham's abuse was ignored or condoned by those in authority does not mean the degree of planning exceeded that ordinarily involved in offences of this nature. It was submitted orally that the breadth and scale of Mr Denham's offending does not necessarily reveal a degree of planning. Counsel described the offending as "cavalier" and "opportunistic", and submitted that Mr Denham's engineering of circumstances so as to take advantage of them was "very much what typically occurs in cases of this type".
[7]
Consideration of ground three
Ground three should be dismissed for the following reasons.
First, in interpreting her Honour's 2015 reasons we do not understand her to have made a finding that the offences were part of a planned or organised criminal activity within the meaning of s 21A(2)(n). The sentencing judge approached the question of planning with a degree of caution. In the conclusions at paragraphs [30] and [31] of the 2015 judgment, quoted above, her Honour stops short of making a finding that Father Brennan and Father Picken acted in concert with the applicant in meting out brutal abuse to children at the school. The planning of the offences found by her Honour is properly to be understood as a factor affecting the relative seriousness of the offence for the purposes of s 21A(1)(c) of the Crimes (Sentencing Procedure) Act.
Second, even if her Honour did make a s 21A(2)(n) finding, the error was immaterial. In Moore v R [2016] NSWCCA 185 at [75] Basten JA said:
[75] The submissions for the applicant should be accepted in so far as the sentencing judge was in error in identifying the aggravating factor by reference to s 21A(2)(n). However, as also appears from RL v R [2015] NSWCCA 106 at [37], planning may nevertheless constitute a factor affecting the relative seriousness of the offence, for the purposes of s 21A(1)(c). Whether an offence is "planned" will involve matters of degree; the comparison is between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic. In this sense, there was a level of planning; the sentencing judge was satisfied that the attack was not simply a response to an unforeseen confrontation. Thus, although the judge was wrong to identify the statutory basis for his finding of aggravation, what he took into account were the matters set out in the passage quoted above. There was no error in treating those matters as aggravating; the incorrect statutory classification cannot be said to have affected the sentence imposed. The error was immaterial.
We are satisfied that the evidence before the sentencing judge was sufficient to find, at least, a level of planning that increased the relative seriousness of the offence for the purposes of s 21A(1)(c), and therefore that that circumstance of aggravation was present. Accordingly the sentencing process did not miscarry for the reasons advanced by the applicant as part of ground three.
[8]
Ground four - sentence unreasonable or plainly unjust
The applicant relies on the submissions made in relation to grounds one, two and three in contending that the overall sentence and effective non-parole period were unreasonable or plainly unjust.
Error having been established in relation to ground one, the Court is required to independently exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; Lehn v R [2016] NSWCCA 255. Therefore it is unnecessary to address this ground.
[9]
Resentencing
As error has been identified it is necessary for the Court to re-sentence the offender.
However, it does not follow that the Court is required to vary the applicant's sentence. In Kentwell the High Court said at [43]:
[43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. ... (footnotes omitted)
In Abdulrahman v R [2016] NSWCCA 192 Bathurst CJ said at [3]-[4]:
[3] It seems to me that what is required by Kentwell v The Queen [2014] HCA 37; 252 CLR 601 is that once error on the part of the sentencing judge has been established, it is necessary to re-exercise the sentencing discretion to determine whether a lesser sentence is warranted in law. The Court, however, made it clear it was not necessary to resentence the applicant if it determined that no lesser sentence was warranted, although if it determined to resentence in those circumstances, it should inform the applicant so that he or she had an opportunity to withdraw the appeal: see also Neal v The Queen [1982] HCA 55; 149 CLR 305 at 308; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 290.
[4] In these circumstances, if on such a re-exercise the Court is of the view that no lesser sentence is warranted but determines not to resentence, then in my view it is sufficient to simply state this rather than indicating the hypothetical sentence which would have been imposed as a result of the re-exercise of the sentencing discretion.
This is a case where no lesser sentence is warranted. Our reasons for reaching this conclusion are as follows.
[10]
Further evidence on re-sentencing
The applicant relies on the following affidavit evidence in the event the Court proceeds to re-sentence:
1. an affidavit of Ms Hill of the Legal Aid Commission dated 28 September 2016 which annexes various documents from Corrective Services NSW which describe the applicant's generally good behaviour in prison; and
2. an affidavit of the applicant dated 20 September 2016 in which he says he takes various medications for gout, atrial fibrillation, hypertension and high cholesterol; he has completed some courses but has faced obstacles in enrolling in or completing others; in particular, he is presently ineligible for the Custody-Based Intensive Treatment (CUBIT) program for sex offenders; he has little access to books; and that although he is held in protective custody he faces abuse when walking through shared areas.
[11]
Re-sentence - consideration
Consideration of re-sentencing must commence with the maximum penalties provided for the relevant offences:
1. indecent assault upon a male contrary to s 81 of the Crimes Act, for which the maximum penalty was 5 years imprisonment (20 offences in 2010; 23 offences in 2015);
2. buggery contrary to s 79 of the Crimes Act, for which the maximum penalty was 14 years imprisonment (2 offences in 2010; 2 offences in 2015); and
3. act of indecency contrary to sub-ss 61E(1) and (1A) of the Crimes Act, for which the maximum penalty was 4 years imprisonment and 6 years if the victim was under the age of 16 (7 offences in 2010).
The overall scale and nature of the applicant's offending is staggering:
1. in the 2010 sentence:
1. 39 victims were involved;
2. the pleas of guilty were entered in relation to 29 separate charges (a number were agreed by the applicant to be "representative" charges) comprising;
1. two offences under s 79 (buggery);
2. 20 offences under s 81 (indecent assault)
3. six offences under s 61E;
4. one offence under s 61E(1A);
1. 32 Form 1 matters;
1. in the 2015 sentence:
1. 18 victims were involved;
2. the pleas of guilty were entered in relation to 25 charges;
1. 2 offences under s 79 (buggery);
2. 23 offences under s 81 (indecent assault);
1. 23 Form 1 matters.
[12]
Objective seriousness
The revealed pattern of offending is amongst the most serious for offences of this kind. The detail of the buggery counts (2010: Seq 6, Seq 7; 2015: Count 8, Count 22), the fellatio counts (2010: Seq 3, Seq 4, Seq 36 (attempted fellatio), Seq 55 (rubbed penis on victim's face), Seq 65, Seq 66; 2015: Count 7; Count 21) and the counts of other anal penetration of the victim (2015: Count 6 (digital penetration); Count 25 (penetration with cane)) underlines the fact that this offending is in many respects towards the very high end of offending. For example, counsel for the applicant accepted that in the case of GZ there were ten occasions of anal penetration of a 12 year old boy within the school grounds. For a trusted priest and respected teacher to engage in these cruel and violent acts with young boys in his care warrants condign punishment.
None of the offences were trivial. We accept that the handful of Form 1 matters that involve pinching victims' buttocks through their clothes or touching them in the groin area through their clothes are relatively minor. As a matter of principle this Court always looks at all of the offending in light of all of the other offending. Seen in that context the objective seriousness of these offences is at the very high end of the scale.
The presently relevant question is whether any lesser sentence is warranted than the two sentences imposed on the applicant in accordance with the Crimes (Sentencing Procedure) Act. In making that determination regard must be paid to any demonstrated pattern of sentencing and severity at that time, and to the fact that during the relevant period non-parole periods were imposed for periods of between 35-50% of the head sentence. In accordance with the principles in Pearce v The Queen (1998) 194 CLR 610, the Court must then consider an appropriate degree of accumulation.
The appropriate degree of accumulation is here critical. With 109 offences (including the Form 1 offences) involving 57 children (including the Form 1 offences) in the circumstances of aggravation present here the Court must be astute to ensure that adequate punishment is recorded for all of the offences, subject to the principle of totality.
Five cases (R v AB (No. 2) (2000) 117 A Crim R 473; [2000] NSWCCA 467; R v Ryan (No 2) [2003] NSWCCA 35; Flaherty v R; R v Flaherty [2016] NSWCCA 188; R v Clarke and Cathro (NSW Court of Criminal Appeal, 7 February 1975, Street CJ, McClemmens CJ at CL, Isaacs J, unrep.); McIntosh v R [2015] NSWCCA 184) were referred to by the applicant as indicative of sentencing patterns in the relevant period, although counsel for the applicant correctly submitted that no case was as objectively serious as the present. The Crown referred to R v Hill (NSW Court of Criminal Appeal, 11 July 1979, Street CJ, Moffitt P, Nagle CJ at CL, unrep.), R v Perrot (NSW Court of Criminal Appeal, 15 February 1980, Street CJ, Nagle CJ at CL, Lee J, unrep.) and R v Roberts [2003] NSWCCA 309.
There was some assistance offered by the cases on the topic of accumulation. In referring to Clarke and Cathro, which involved three separate complainants on separate occasions separated by several months and the anal rape of 16‑year‑olds by offenders pretending to be police officers offering violence, counsel for the applicant accepted:
The relevance perhaps is that contrary to my eventual submissions, there was full accumulation of each of those three sentences, as held appropriate by the Court of Criminal Appeal. … the non-parole period referred to as appropriate was eight out of 15 years for the more serious offender, being Clarke…
We did not otherwise find any real assistance from these relatively few cases cited by the parties in discerning a "pattern" of sentencing from 1968-1986 relevant to these offences. Had the offences here in question come to the attention of a court, including this Court during that period, and assuming that for each sentence imposed a non-parole period of 35-50% was imposed, an appropriate accumulation between the offences would have had the effect that no lesser sentence than that imposed by the sentencing judge would have been appropriate for such an appalling body of crime.
The difficulty for the applicant in submitting that a lesser sentence is warranted is demonstrated by the cases relied upon. In particular McIntosh was a case that only involved four complainants, and 42 offences. On appeal the non-parole period was reduced to 18 years, only slightly less than the overall effective non-parole period for the 2010 and 2015 sentences of 19 years and five months and nine days. The present is a much more serious case than McIntosh.
The applicant also relied upon Flaherty in order to compare the indicative sentences given in that case to the indicative sentences given in this case. Flaherty was a very different case to the present. The apparent attraction of comparing some of the indicative sentences there imposed and the indicative sentences imposed by the primary judge in relation to the 2010 sentencing overlooks the very different nature of the offending here and the fact that the Court is called upon to re-sentence, not merely to adjust the primary judge's indicative sentences.
If a pattern of offending of the kind demonstrated here had come to the attention of the Court at any time during the relevant period, in our view the sentences imposed would not have resulted in a period to serve of less than 13 years and ten months for the 2010 offences and 13 years for the 2015 sentences. The only question would have been the degree of accumulation.
The cases cited do not suggest that a sentence of 13 years and ten months for the 2010 offences or 13 years for the 2015 offences would not have been imposed by a court sitting in 1968-86, even making allowance for the utilitarian 25% discount for the plea of guilty in 2010 and 10% discount in 2015 that we would allow on the sentence which otherwise would have been imposed.
It is clear from the agreed facts that the effects of this sexual predator on these young boys were devastating. Many lives were ruined. Certainly all of the victims were affected in dramatic ways which make the offender's abuse of trust more heinous. The victims suffered anguish. Many left school early in order to avoid the attentions of the applicant. Complaint was impossible or fruitless. Many of the victims suffered difficulties later in life - relationship issues, substance misuse and depression - directly arising from the abuse.
Although some offences were opportunistic, many demonstrated a degree of planning such as calling victims from classrooms, taking them on outings or cultivating the friendship of their parents. Some victims were targeted as vulnerable due to family circumstances or personal fragility. Some of the boys did report the serious abuse contemporaneously and they were caned for it. On one occasion when a child had reported it to his parents and the parents reported it to the school, he was still caned for making the complaint.
Particular features of the objective seriousness of this offending we regard as important were as follows:
1. The offences involved systematic exploitation by a man using his guise as a priest, his pretence to be a moral authority in breach of trust and his position of authority;
2. Many of the serious sexual assaults were accompanied by the deliberate infliction of pain, such as sexually assaulting children using the cane as both a disciplinary weapon and an instrument of sexual gratification;
3. There were instances where the applicant was invited into people's homes and the children of Catholic families were instructed to treat him as an honoured guest and then he interfered with the boys when the parents were not looking;
4. The place where the majority of offences were committed is important. The applicant used occasions when he could administer some discipline or pretend to do so to take victims to his room and there sexually assault them. He made brutal threats to the children to keep his activities secret;
5. These offences were not spontaneous or opportunistic. This was a systematic exploitation of his position of trust at the school;
6. Whilst age was not an element of the offences contrary to ss 79 and 81 of the Crimes Act (buggery and indecent assault respectively), the very young age of the victims is a matter important to objective seriousness;
7. The applicant targeted the most vulnerable boys. Generally they came from difficult family backgrounds.
We assess the buggery offences 2010 Sequence 6 (JD) and 7 (GZ); 2015 Counts 8 and 22) as at the top of the range for objective seriousness. The maximum penalty for each offence was 14 years imprisonment.
We assess the indecent assaults upon a male contrary to s 81 of the Crimes Act, 2010 Sequences 3 (GZ), 4 (JD), 8 (AM), 23 (JP), 36 (RB), 39 (PH), 43 (JO), 65 (JW) and 66 (PE); 2015 Counts 1, 2, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21, 23 and 25 as near the top of the range for objective seriousness. The maximum penalty for each was 5 years imprisonment;
We assess the acts of indecency contrary to sub-ss 61E(1) and (1A) of the Crimes Act, 2010 Sequences 50 (BM), 55 (BM), 55 (MR1), 59 (RP), 60(AW), 67 (BS) and 67 (CW) as comfortably above the mid range of seriousness. The maximum penalty for each offence was 4 years imprisonment and 6 years if the victim was under the age of 16.
We assess the indecent assault upon a male contrary to s 81 of the Crimes Act, for which the maximum penalty was 5 years imprisonment 2010 Sequences 12 (GJ), 16 (BR), 19 (JW), 24 (CD), 26 (TS), 30 (PG), 33 (CC), 37 (WV), 40 (JO), 62 (NP) and 63 (SM); 2015 Counts 3, 11, 20 and 24 as slightly below the mid range of seriousness.
We have taken into account the matters pressed by counsel for the applicant (together with the material read on re-sentence) concerning the applicant's subjective circumstances.
It is true that the applicant will be in his 80's before he is eligible for release on parole. Whilst appropriate to take into account, it must be steadily borne in mind that the nature of his crimes was that he abused and took his deviant sexual gratification from young boys who were in most cases too intimidated by his position of authority and by the massive breach of trust that was involved to report it. And so for decades after his offending he continued to live his life while theirs were substantially destroyed. He is being sentenced late in life, but that is because of the nature of his crimes.
Particular matters concerning the applicant's subjective circumstances we have taken into account are:
1. The fresh evidence on appeal. This in our view is of limited significance. It demonstrates the applicant's generally good behaviour in prison, his common medical difficulties and his willingness to undertake courses in prison;
2. The applicant's otherwise good character. We have taken into account the absence of convictions together with the testimonials relied upon from three individuals. One said the applicant supported him in a time of need and assisted him in overcoming a drug abuse problem. Two others attested to the applicant's "trustworthiness and competences as a librarian";
3. Delay in the present case should not be given much weight. The applicant's offending was kept secret by his threats towards and violent punishments for children who spoke out about the sexual abuse. It is true that there were two separate series of charges (2010 and 2015), however, the second set of charges was a result of victims coming forward after the 2010 sentence proceedings. The time between the initial charges and the 2010 sentence hearing was as long as it was in large part as a result of negotiations between the applicant and the Crown;
4. The age of the applicant is relevant but again entitled to relatively little weight. Other than minor medical issues there was no evidence of specific age related difficulties faced by the applicant;
5. We accept that given the applicant's age and the absence of evidence of offences since 1986 there is little likelihood of the applicant reoffending. His risk to the community upon release is relatively low;
6. We do not think that the applicant is entitled to significant consideration for the remorse he has demonstrated. His apologies to the victims, including in the fresh material before this Court, show a real lack of insight into the devastating effect of his conduct on the lives of 57 boys who were then in his care;
7. The applicant is entitled to some consideration for the more onerous conditions of custody he faces. Having said that, the applicant's complaint that he shares a section of the prison with serious offenders, that his books are inadequate and that he has no one to discuss his interests with does not entitle him to more than minor consideration.
[14]
Conclusion on resentencing
In conducting the instinctive synthesis required of a sentencing Court, for the reasons given above we have assessed the objective seriousness of the offending here revealed as grave. The objective seriousness of the vast number of cruel and violent sexual assaults upon young boys in the applicant's care warrants condign punishment.
Although the applicant is entitled to have taken into account the subjective circumstances described above, the critical question is whether any lesser sentence is warranted than that imposed by the two sentences upon the applicant here.
We have not found there to be any demonstrated pattern of sentencing and severity at that time. Shortly put, this offending is significantly more serious than any of its kind that was dealt with during the relevant period. We do not accept that if the full extent of this conduct had come to light at any time in the period 1968-1986 any lesser period of imprisonment would have been imposed. We have taken into account the fact that during the relevant period non-parole periods were imposed for periods of between 35-50% of the head sentence. We assess this offending as requiring a sentence at the very top of that range.
Further, since at least 1974, it has been established that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice: Power v The Queen (1974) 131 CLR 623, referred to in AJB v R and many subsequent cases dealing with the principle of sentencing in relation to historical offences: Magnuson at [88].
The application of principle, it seems to us, means that while it is necessary to take into account the fact that non-parole periods of between 35-50% of the head sentence were fixed in relation to sentences imposed between 1968 and 1986, no mere mechanical or mathematical transposition of that percentage approach to the task required by the Crimes (Sentencing Procedure) Act is warranted. It remains critical that the non-parole period fixed by this Court represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice.
In many ways the applicant's best case, drawing upon McIntosh (which involved conduct not nearly so serious as the present), demonstrates that no lesser sentence is warranted here. The overall effective non-parole period imposed here, for the 2010 and 2015 sentences of 19 years and five months and nine days was only slightly longer than that imposed in McIntosh. As we have said, the present is a much more serious case than McIntosh.
Determining the appropriate degree of accumulation in accordance with the principles in Pearce is here critical. In the circumstances present here the Court must be astute to ensure that adequate punishment is recorded for all of the offences, subject to the principle of totality.
We are of the view that no lesser sentence is warranted in this case. For the reasons given by the Chief Justice in Abdulrahman we do not think it appropriate to set out what higher sentence we would have given. Taking into account the existence of the sentencing practice of fixing non-parole periods of between 35-50% of the head sentence would no doubt support the making of a finding of special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act: CPW v R. In properly giving effect to this historical practice, no doubt the balance of term we would have fixed would have been far longer than that imposed by the primary judge.
Having regard to each of the matters to which we have referred, this was some of the most serious offending conduct in relation to 57 children over many years. No lesser sentences that the overall effective non-parole period, for the 2010 and 2015 sentences, of 19 years and five months and nine days is warranted.
[15]
Orders
Accordingly the Court makes the following orders:
1. Extend the time for the filing of the notice of appeal and application for leave to appeal to 24 May 2016.
2. Leave to appeal granted.
3. Appeal dismissed.
[16]
Endnote
In her Honour's judgment all victims are anonymised and identified only by their initials. However, two victims who shared the same initials ("JW") were not differentiated within her Honour's judgment. Therefore, a reading of the offence summaries set out in her Honour's judgment reveals only 38, rather than 39, victims. This error was adopted in the Crown submissions in the appeal. The correct number of victims is 39.
[17]
Amendments
24 January 2017 - Corrections to coversheet
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Decision last updated: 24 January 2017
auss v R [2012] NSWCCA 25
Category: Principal judgment
Parties: John Sidney Denham (applicant)
Regina (respondent)
Representation: Counsel:
J Watts (applicant)
V Lydiard (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)
File Number(s): 2009/10327 / 2011/382572
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Citation: R v Denham [2015] NSWDC 21
Date of Decision: 2 July 2010
23 January 2015
Before: Syme DCJ
File Number(s): 2009/10327 / 2011/382572
headnote
[This headnote is not to be read as part of the judgment]
The applicant, Mr Denham, is a former Catholic priest and schoolteacher. He was charged with and convicted of a large number of child sexual assault offences committed between about 1968 and 1986. In 2010 Judge Syme in the District Court sentenced him to a non-parole period of 13 years and 10 months with a balance of term of 6 years, being a total sentence of 19 years and 10 months. That sentence was in respect of offences concerning 39 victims (including Form 1s). At the time of sentencing, the applicant was 67 years old.
As a result of the 2010 proceedings a further 18 individuals made statements to police. The applicant was charged with and convicted of offences concerning these further 18 victims. In 2015 Judge Syme imposed an aggregate non-parole period of 13 years and an aggregate balance of term of 5 years. The overall sentence imposed on the applicant, taking into account the 2010 and 2015 sentences, comprised a non-parole period of 19 years 5 months and 9 days with a balance of term of 5 years. The applicant is eligible for release to parole on 22 January 2028.
The applicant sought leave to appeal from both the 2010 and the 2015 sentences. His grounds of appeal were that the sentencing judge erred in:
(1) failing to properly apply the sentencing principles and practices existing at the time of the offending;
(2) failing to give sufficient weight to the applicant's lack of offending since 1986 in making findings as to rehabilitation and likelihood of re-offending;
(3) finding that the offences were aggravated by being part of a planned or organised criminal activity; and
(4) imposing an overall sentence and effective non-parole period that was unreasonable or plainly unjust.
The Court held, granting leave to appeal but dismissing the appeal (Payne JA, Fagan and N Adams JJ):
As to (1):
Sentences imposed during the period with which the present case is concerned typically involved non-parole periods comprising 35-50% of the head sentence: [49].
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.
In the 2010 sentencing judgment the primary judge erroneously sentenced the applicant on the basis that the parole period typically comprised 35-50% of the head sentence. Her Honour effectively imposed a non-parole period comprising approximately 70% of the head sentence. That error was incorporated into the 2015 sentence: [50]-[56].
As to (2):
In both the 2010 and the 2015 sentencing judgments the primary judge took account of the applicant's lack of offending since 1986 in making findings as to rehabilitation. The applicant's complaint was one of weight. No error was established: [59]-[65].
As to (3):
The 2015 judgment should not be read as disclosing a finding as to the presence of an aggravating factor pursuant to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (that the offences were part of a planned or organised criminal activity). No error was established: [71].
Even if the primary judge did make a s 21A(2)(n) finding, the error was immaterial on the basis that the level of planning increased the relative seriousness of the offence for the purposes of s 21A(1)(c), and therefore that circumstance of aggravation was present: [72]-[73].
Moore v R [2016] NSWCCA 185.
As to (4):
Error having been established in relation to ground one it is unnecessary to address ground four: [75].
As to resentencing:
It is necessary for the Court to re-sentence the applicant: [76]. The Court is required to independently re-exercise the sentencing discretion to determine whether a lesser sentence is warranted in law: [77]-[76].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Abdulrahman v R [2016] NSWCCA 192.
The authorities relied upon do not suggest that, if a pattern of offending of the kind demonstrated in the present case came to the attention of the Court during the relevant period, the Court would have imposed a lesser sentence. The cases do not demonstrate a pattern of sentencing and severity at the time of the offending, because the offending was significantly more serious than any of its kind that was dealt with during the relevant period: [87]-[93]; [107].
Taking into account the high level of objective seriousness of the offending ([83]-[101]) and the applicant's subjective circumstances ([102]-[104]), no lesser sentence is warranted: [79]; [105]-[113].
The 2010 sentence
In the 2010 sentencing judgment the primary judge commenced by describing the main features of the applicant's offending. The primary judge noted that the applicant had pleaded guilty and that the Crown conceded the utilitarian value of the plea was high. Accordingly the primary judge allowed a 25% discount on the sentence that would otherwise have been imposed.
At [17] the primary judge discussed the approach to be taken when sentencing for historical offences. Her Honour said the court was required to "consider in so far as is possible, sentencing practices as at the date of the offences". At [18] her Honour reproduced a passage from R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [107] per Sully J (itself quoting R v Moon [2000] NSWCCA 534 at [70]-[71] per Howie J) which said "the sentence imposed should reflect the objective seriousness of the offence and be proportional to the criminality involved in the offence committed"; that these criteria will be "determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence"; and that:
When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.
Her Honour then turned to aggravating and mitigating factors. Her Honour did not explicitly refer to s 21A of the Crimes (Sentencing Procedure) Act. However it is clear when reading her Honour's reasons that many of the factors she considered mirrored the factors set out in that section:
1. [23]-[25] "Harm caused to victims": The victims suffered "anguish". Many "left school early in order to avoid the attentions of this man, because for reasons already stated, complaint was impossible or fruitless". Many attribute difficulties suffered later in life - relationship issues, substance misuse and depression - to the applicant's abuse.
2. [27] "Planning": Although some offences were opportunistic, many demonstrated "a degree of planning" e.g. calling victims from classrooms, taking them on outings or cultivating the friendship of their parents. In this respect "the criminality of the offender is heightened". Some victims were targeted as vulnerable due to "family circumstances" or "personal fragility". The primary judge noted "Where I find planning was involved, it was with this definition in mind".
3. [28]-[31] "Good character": The court considered testimonials from three individuals. One said the applicant supported him in a time of need and assisted him in overcoming a drug abuse problem. Two others attested to the applicant's "trustworthiness and competences as a librarian". However, the testimonials were given little weight and the primary judge noted that "A determined and conscious course of offending diminishes the mitigating impact of a finding of good character", clearly considering the applicant's offending to fall into that category. Ultimately there was insufficient evidence for the court to make a finding of good character, other than as to lack of convictions when the offending commenced, which "offers small assistance".
4. [32]-[33] "Delay": Delay, as a consideration separate to risk of reoffending, "offers the offender no comfort". Evidence indicated that the applicant "has gone through the years untroubled by his offences, lacking any remorse in respect of them and feeling confident that they will never come to light because the victims never would be prepared to talk about them". The primary judge acknowledged that the time between charge and the first sentence hearing was long but "not unduly so for so many offences" and was "the result of negotiations".
5. [34] "Age of the complainants at the time of the offences": Many victims were "young or very young". Notably, age is not an element of the offences contrary to ss 79 and 81 of the Crimes Act (buggery and indecent assault respectively). For those offences "the younger the victim the more serious is the criminality", citing R v PWH (NSW Court of Criminal Appeal, 20 February 1992, unrep.).
6. [35]-[37] "Breach of trust and position of authority": This was an "obvious aggravating feature". The applicant was supposed to provide spiritual and educational guidance to students. He was invited into families to be treated as a family member. Many of the offences took place when the applicant had parental consent to take victims on outings. In other circumstances the applicant used his "enhanced position of authority over the children at school" to commit offences. The "nature of the authority and the closeness of the relationship meant that these children had no one to complain to, thus making them more helpless and the offending as a whole generally more serious".
7. [38] "Where the offences were committed": The offences occurred when the victims were at home or at school - places where they "ought to have been able to feel safe". The applicant "enjoyed some sort of protection in the school that either enabled him to commit these multiple offences undetected, or undisturbed".
8. [39]-[40] "Age of offender": At the time of sentence the applicant was 67 years old. Other than minor medical issues there was no evidence of specific difficulties the applicant will face. The primary judge acknowledged that the offender's age, and the delay between the offending and the sentence, would reduce considerations of specific and general deterrence.
9. [41]-[45] "Likelihood of reoffending/remorse": The applicant demonstrated a "lack of insight into the sheer moral depravity of his actions" which the primary judge considered "compliments [sic] his lack of remorse". Her Honour referred to psychological evidence that assessed the applicant's risk of reoffending as "moderate to high" based on the offences he committed, but "low" taking into account his age upon release from imprisonment. Given that "it is likely that in his release his danger to the community will be less than before ... specific deterrence is a less important sentencing consideration".
10. [46]-[50] "Prospects of rehabilitation": The applicant's age is likely to be a factor in his rehabilitation. As a result of his age and the time he will spend in custody his risk to the community is "relatively low". The primary judge recommended the applicant be assessed for the sex offender's program and supervised upon release.
11. [52]-[55] "Hardship of custody for child sex offender[s]": The evidence of hardship appeared to be equivocal. The primary judge was not prepared to "assume" hardship in custody. Her Honour noted that "the usual parole ratio in existence at the time of his offending will provide him with a greater than is the current ratio. This will give him some benefit".
At [57] her Honour addressed "Multiple offences; totality and accumulation; parole; special circumstances". Her Honour said:
[57] Many of the charges are individual offences, occurring separately from other actions of the offender toward each individual victim. In such cases partial accumulation will be considered in order that the individual counts are reflected as individual acts of criminality. Most of the offences fall into this category. There will be consideration given to the need for a period of supervision as part of the sentence. For that reason, the order of accumulation will roughly follow the order of commission of offences, with an adjustment made in the parole period ratio for the final offence to reflect a suitable proportion of the total sentence. I will as far as possible have regard to sentencing practice with respect to the parole ratio at the time of offending, which I accept approximated a third of the total sentence, but varied, depending on the length of sentences. (italics added)