R v Denham

[2015] NSWDC 21

District Court of NSW|2014-08-25

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At a glance

Source facts

Court

District Court of NSW

Decision date

2014-08-25

Source

Original judgment source is linked above.

Judgment (147 paragraphs)

[1]

Judgment

The offender was born in September 1942 and is now 73 years of age. Between 1968 and 1986 he committed multiple sexual offences against male children whom he met through his official capacity as teacher and priest with the Catholic Church.
In August 2008 he was arrested and charged with a number of offences relating to this time. He pleaded guilty to 29 separate offences, taking into account 32 allied matters on 20 form 1 schedules, for offending against 39 male children. He has been in custody since the 14th August 2008, serving a sentence of 19 years and 10 months with a non-parole period of 13 years and 10 months. His first available date for release is 13 June 2022. Reasons for decision were handed down in July 2010. [1]
Investigations continued and a further 18 men made statements to police in similar terms to the previous complaints; that is that they had been sexually abused as children when they were under his care or authority as a teacher or priest. The offender was subsequently charged on 30 November 2011. He pleaded not guilty. On 31 July 2013 as the trial was due to commence, he entered a plea of guilty to 25 separate charges with a further 23 charges to be taken into account on 14 form 1 schedules.
This sentence relates to those later offences. As they were committed in the same time frame as the previous matters, often in similar circumstances there is some overlap of findings and sentence considerations. The totality of all of the offending behaviour gives rise to considerations of accumulation and concurrency with the previous offences. To some extent therefore it is necessary to revisit some of those considerations and findings. Much of the background information is the same. For ease of interpreting these reasons and to avoid repetition where appropriate I will reference the previous reasons by footnote.
The general background to these matters and the offender's position as priest and teacher is as contained in the 2010 decision. [2] It was after publicity for those matters that the current complainant's broke their silence.

[11]

PLANNING- ORGANISED CRIMINAL ACTIVITY

The school, St Pius X, was described by nearly all of the complainants in this and in the previous proceedings as a brutal school where the offender's predilection for sexually abusing young boys was well known, where punishment was meted out mercilessly, and where any complaint about the offender was ignored at best, and brutally punished on other occasions. [11] The offender's sadistic and violent behaviour toward children contributed to the atmosphere of fear in the school.
The totality of the agreed facts in both matters brings with it an understanding which requires an updating of previous conclusions regarding the issues of planning and organisation of these paedophilic acts. The apparently protected status of the offender throughout his offending is a matter so obvious it cannot be ignored.
The degree of offending as now before the court represents a considerable increase in the criminality of the offences viewed as a whole and nearly a doubling of the number of offences committed at the school. It is a continuous and very wide pattern of offending, the likes of which is fortunately not often seen in these courts. It is now clear that the offender not only targeted these vulnerable children continuously, but organised himself, either with or without the assistance of his work colleges to ensure that he was placed in positions where the abuse could continue unhindered, and complaints would be punished, fobbed off or ignored .Frequent transfers enabled him to commence with a new group of victims who knew nothing of his prior reputation.
The combined sets of facts lead to an inescapable conclusion of the active or tacit collusion by at least 2 other church officers, during the years of offending behavior. Those officers must have known of this offender's behavior and did nothing. There is sufficient evidence in both sets of facts to conclude complicity in the offending behavior by these other church officers which supports a finding of an organised criminal activity. I am aware that such a conclusion requires a finding beyond reasonable doubt. My reasoning follows.
The principal, Father Brennan (who is now deceased) had been told on numerous occasions of Denham's depraved behavior, by boys and parents yet did nothing about it. Father Brennan ignored complaints by several boys and at least 2 parents. [12] Even after complaints, he continued to send boys out of class to this offender's room where the children were abused [13] . This offender was obviously confident of that support and he obtained it from Principal Brennan.
Furthermore some of this offender's abuse occurred in public places, such as in front of class, in the playground, in Father Brennan's office [14] or in church, even outside the confessional. [15] This offender was always very confident that he would not be stopped from this abusive behavior. He frequently taunted the boys that they had no one to complain to, on one occasion even saying " if you want to tell someone, tell God" [16]
A similar observation can be made about a number of trips taken to the Wingham Presbytery, in both these and the previous facts. The behavior of both priests, drinking, providing alcohol for the children speaks of a planning and actual support from one to the other of this organised abuse.
One child [17] recalls having the impression that another person was present during a late night session with the offender. In the previous sentence [18] the same priest is referred to as being generally present at times the offender abused children. There is no other plausible explanation other than that the other priest knew what was occurring.
In giving evidence in the current proceedings, the offender was asked whether any other person knew of his abuse. He denied it. However Mr Denham has both a history and an interest in minimising his offending behavior. He did not offer any explanation as to how his offending continued in the light of the complaints to Father Brennan and in the presence of Father Picken. I did not find his evidence convincing. The obvious conclusion drawn from both sets of facts is that at least Father Brennan and the Wingham priest, Father Picken knew of and either ignored or encouraged his activities.
The sheer volume of boys involved in this sexual abuse and the number of times that each child was abused by the offender is staggering, even to this court. Taking both sets of facts together, he abused 57 boys, some of them repeatedly. Taking into account only the period when he was a teacher at St Pius X the offender operated as if he was at some paedophilic smorgasbord, entitled to abuse boys at any time or place of his choosing. In the 4 ½ years at that school 41 men who have now complained, detailing over 81 events, many representative offences, many of them in public or semi public places. It defies belief that his abuse of children was not only widely known but ignored or condoned by those in authority, at least at the school.

[14]

HARM CAUSED TO VICTIMS

Reading a combination of these and the previous facts, it becomes clear that the offender preyed on vulnerable children who sometimes had come from difficult life circumstances, or were vulnerable due to their size or shyness. The facts disclose that the offender seemed to relish the fact that their vulnerability was increased by his abuse and threats and violence towards them, by smirking, or making flippant comments at the time of abuse. [20]
In the previous matter I reached a conclusion [21] that the severe consequences of the offending behaviour was "sadly a usual and common result of this type of offending. They do not form part of separate circumstances of aggravation."
I have reconsidered this conclusion for some of the current matters. As the crown rhetorically asks" How much worse does it get?" These offences were all committed against youths as they were approaching puberty, often when they were at a vulnerable stage of their school lives, by a person they were required by their family obligations to come into contact with and show respect to. For some who were already in otherwise vulnerable situations, the attention given to them was catastrophic both immediately and for their whole lives.
Victims of this man attribute the difficulties they have encountered in later life, such a relationship difficulties, substance misuse and depression and mental illness, directly to the abuse they suffered at the offender's hands. One of the victims summed up the effect on him by saying "what he has done has affected my entire life. Every day is a struggle". The immediate physical toll was significant for many victims .The agreed facts note the children to have been confused [22] terrified [23] scared and helpless [24] . The immediate emotional toll was often crushing. The long term consequences are frequently devastating [25] . Where there is evidence that the initial and long term consequences are substantial, it will amount to an aggravating circumstance. [26]

[20]

AGE OF OFFENDER

The age of the offender at the time of sentence is relevant primarily on the basis that imprisonment may be more onerous for an older individual. There is no automatic reduction because of age. It is a matter to be considered together with the other circumstances of the case: Age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years": [29]
It is submitted on behalf of the offender that any further significant accumulation on the current sentence will see the offender released "well into his eighties would constitute a crushing sentence, and therefore is to be avoided". Reliance is placed on R v Holyoak [30] where the offender was 75 years of age. The court considered the offender's age should usually be taken into account when jailing a man of advanced years. However, in that case the court found that notwithstanding the offenders advanced age, and proven physical frailty, those facts alone (my emphasis) would not be a reason to alter the sentence for what the court said were horrendous crimes of sexual abuse.
The crown submits that the age of the offender is something that ought properly be considered where it is likely that the offender would die in prison because of the length of the sentence being considered. The case of R v Giardini [31] supports that submission. However, in that case there was reliable evidence of the offender's illness and prognosis of a much shortened life expectancy, from which the court drew a conclusion that the offender would not survive the minimum term of a combined sentence.
There is no evidence of specific difficulties this offender will face. He is 73 years old now, and will be 79 when eligible for parole on the present sentence. There is little evidence of his health status, apart from a recent operation for some urinary difficulties, and a self-report of some minor issues which are controlled by medication. Dr Nielssen noted him to be cognitively alert. I observed in court that he was fully engaged in the procedures and forthcoming in his defense. Physically he appears to be a large and reasonably robust man for his age. He has apparently lead a physically undemanding life, and absent any evidence to the contrary could have many years still available to him.
In any event these offences are collectively of such seriousness that his advanced age now cannot be an overriding consideration. Notwithstanding that, it is acknowledged that the offender's age and the length of time between the offences and this sentence may reduce the consideration of general and specific deterrence as a sentencing consideration. He offended over a period of 18 years and then enjoyed 22 years untroubled by these offences. His current incarceration will see him in custody for nearly 14 years if he is released at the expiration of his non parole period. Notwithstanding his age, a sentence that reflects the seriousness of the offending is necessary.

[23]

DELAY

In the previous decision [34] . I referred to the consequences of delay in that matter. My Comments are relevant to the present proceedings as there is further delay in the current sentence .
Mr Denham complained to Dr Nielssen [35] that the current charges were not laid originally due to " lack of proper investigation". This is not entirely true. For reasons which are commonly known, the victims in these matters did not complain originally no doubt for their own personal reasons. Thereafter , there was a delay of nearly 2 years due to the guilty plea only being entered after the trial was due to commence. Thereafter he sought further adjournment of the current sentence proceedings to seek advice as to the prospects of appeal on the 2010 sentence.
The effect of the delay in sentencing for these charges is largely that is makes for a more complicated sentencing process, as the court will have to consider not only the objective seriousness of each of the current offences, apply the appropriate discount for a later plea, compare them in general terms to the previous offences, for which he received a 25% discount for an early plea, and then consider the issue of accumulation of the current set of sentences on the previous combined sentences. Provided the court undertakes this process, the complication caused by delay in these charges can be offset fairly.
There is no evidence of any detriment to the offender as a result of delay in the current sentences. Sometimes, delay can benefit to an offender if he is able to show that within the time of delay, progress has been made toward rehabilitation. I have heard evidence from the offender and read the most recent report from Dr Nielssen. [36] Mr Denham demonstrates no increased level of insight or remorse now than he displayed 4 years ago [37] . There is no evidence that the offender is in any better personal position regarding his risks of re offending. The most recent report from Dr Nielssen confirms that except that he is older his risk factors remain the same. This is not surprising as the offender is not yet eligible to undertake any pre release program for sex offenders. However despite his interest in self education he has not taken any steps of which I am aware to educate himself on relevant issues, such as the consequences of his offending.
Therefore delay is not a factor that assists him. The court will however take care to sentence him to a regime that would have been appropriate if all the matters had been dealt with together, taking into account any changed personal circumstances.

[58]

Plea Count 6

In early 1977, the offender approached the boy before school started. He requested the child accompany him. They went to the offender's bedroom. The offender told the boy to sit next to him on the bed. The offender placed his right hand on the boy's left thigh and started to rub it. The offender then moved his hand up to the boy's genitals, still on the outside of the boys clothing, and rubbed. The offender was saying "everything is OK. We're just friends." The boy did not know what to do he was scared and confused. The offender then asked the boy to lie down on the bed and take his pants off. The boy complied. The offender then started to rub the boy's penis. The boy's penis became erect. The offender repeatedly said "You're enjoying this. This is good." After a short time the offender told the boy to roll over onto his stomach. The boy did so. The offender then started to rub and fondle the boy's legs and backside. The offender then inserted his finger into the boy's anus, causing a sharp pain. The offender moved his finger in and out of the boy's anus. The boy felt sick and described the pain as terrible. He buried his face in the covers of the bed and was crying. It felt like the incident lasted for a long time. The boy wanted it to stop but felt helpless. When the offender stopped, he told the boy to roll over and pull his pants up. The boy rolled over but was too upset to pull his pants up he just continued crying. The offender was talking to him about his erection, saying that it meant he wanted it and enjoyed it. The offender told the boy if he told anyone the offender would tell his father that he wanted it and the boy had come to him. The boy thought his father would beat him and kick him out of home. The boy remained there until he stopped crying. The offender repeated his threat. The boy pulled up his pants and left. The offender accompanied him back to the school grounds. The boy did not go to class until lunchtime. The boy made no complaint. He could not tell his father for fear of being beaten. The boy tried from then on to avoid the offender. He was now also scared at school. Until this incident school had been a safe haven for him from his home life.

[144]

General Sentence Considerations: Aggregate Sentence, Special Circumstances.

As already observed these offences against 18 children represent a serious form of this type of offending. The delay in charging is significant, but "Old Sins Cast Long Shadows."41
S 3 A of the Crimes Sentencing and Procedure Act requires the court to consider often competing aims of a sentence. Punishment which adequately denounces the criminal conduct and recognises the harm done to the victims and the community is called for, within the limitations imposed by the maximum penalties in existence at the time. Specific deterrence is addressed by virtue of the length of the sentence. A requirement to consider a plan for rehabilitation is somewhat overshadowed by other considerations and practicalities.
Generally, when considering partially accumulating a sentence on an existing sentence, courts are required to set a non-parole period in accordance with s 44 which reflects a ratio for the whole sentence, rather than just the additional term imposed. In considering the total non-parole period it is also necessary to ensure that the aggregation of all of the sentences is a "just and appropriate measure of the total criminality involved". This approach has been confirmed in many cases. [41] This consideration must therefore apply to both the total term to be served and the proportions of that term is served in custody and in the community.
When considering accumulation for multiple offences, Appeal Courts have urged sentencing Courts to "take care when accumulating sentences where there are multiple victims to guard against the view that, in reality, there is virtually no penalty imposed at all" [42] .
I propose to commence the sentence imposed today from today. That will represent an accumulation of 6 years 5 months and 9 days. This is an appropriate period of accumulation, representing almost half of the current non-parole period.
It was submitted that due to the offender's advanced age, special circumstances ought be found to reduce the non-parole period proportion of the total term. I have already referred to his age as it is relevant to the imposition of a sentence which he may or may not survive [43] , but this is a slightly different consideration as it affects the length of time to be served in a custodial setting and the proportion of a total sentence to be served under supervision in the community. There is evidence of an inverse ratio that exists between his age and risk of re-offending, even if a finding of rehabilitation is not otherwise made. Dr Nielsen made available to the court [44] the Static -99R coding form which is simply a list of fixed risk factors for which scores are allocated to arrive at a total risk of re-offending score, which is then translated to low, medium or high category label. This offender's total score is 3, which translates to the low-moderate range of risk categories. The risk score is reduced as a result of his age, and increased due to the number of male, unrelated victims, and prior offences.
On the current sentence regime, he will be aged 79 years on his release. Notwithstanding that, there is a need to ensure that the sentence for these further offences, which represent only a slightly lesser number of complainants and similar types of offending result in a further substantial period of custody. To do otherwise would offend the principles referred to above. As a result, on his release, there will be little demonstrated need for him to be supervised by the authorities for the amount of time required under the s 44 ratio as it relates to the total of accumulated sentences. The period of supervision is already a very substantial one.
By the time his non-parole period expires he will be aged nearly 85 years. At that time his advanced age will lessen his risk of re-offending. Therefore although a substantial term ought be served in a custodial setting, for the reasons mentioned above, there are circumstances which will result in a finding of special circumstances but to increase the non parole to parole ratio on the sentence I impose today, so that an appropriate amount of time is served in a custodial setting, but proportionally less time under supervision in the community. It is a practical and realistic conclusion. The conditions of parole for such an extended term are that while he will be eligible for release at the stated time he must demonstrate that he no longer a threat to the community. Due to the length of the sentences, the parole period is substantial, even with this finding.
The offender, JOHN SIDNEY DENHAM, is sentenced to an aggregate term of imprisonment of 18 years, to commence on 23 January 2015 and expiring on 22 January 2033 with a non-parole period of 13 years. The offender is first eligible for parole on 22 January 2028. The relevant agency for the purposes of supervision is Probation and Parole Service.
The total of the accumulated 2010 and current sentence will result in the offender serving a period in custody of 19 years 5 months 9 days with a period of 5 years supervision on his release.

R v Denham

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