Denham v R

1. [1]

   THE COURT: Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) the applicant, John Sidney Denham, seeks leave to appeal against sentences imposed upon him on 2 July 2010 (the 2010 sentence) and 23 January 2015 (the 2015 sentence) in the District Court by her Honour Judge Syme.

2. [2]

   The applicant is a former Catholic priest and schoolteacher. His sentences relate to a very large number of child sexual assault offences committed between about 1968 and 1986.

3. [3]

   The number of victims is significant. The two sentences concerned a total of 57 victims. The 2010 sentencing judgment concerned 39 victims [1] (comprising a number of victims in respect of whom the applicant entered a plea of guilty and convictions were recorded; and a number of additional victims in respect of whom only Form 1 matters were taken into account).

4. [4]

   As a result of the proceedings in 2010 a further 18 victims made statements to the police. On 30 November 2011 the applicant was arrested on further charges and ultimately committed for trial. Eventually the applicant entered a plea of guilty to 25 charges with the remaining matters to be taken into account on a Form 1. The 2015 sentencing judgment concerned the 18 additional victims (the Form 1 matters did not involve any additional victims).

5. [5]

   Most of the victims were pupils at St Pius X High School in Newcastle. Others were altar boys or parishioners at churches within the Newcastle Maitland Catholic Diocese where the applicant had been an assistant priest.

6. [6]

   In the 2010 sentence, which was imposed prior to the enactment of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), individual and partly accumulated sentences were imposed for each offence which involved a total 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: [182].

7. [7]

   In the 2015 sentence her Honour relied upon s 53A of the Crimes (Sentencing Procedure) Act and imposed an aggregate non-parole period of 13 years and an aggregate balance of term of 5 years: [159].

8. [8]

   The 2015 sentence commenced from the date it was delivered, 23 January 2015, with the result that it was partially cumulated upon the 2010 sentence which dated from the arrest on 14 August 2008.

9. [9]

   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: [159].

The agreed facts in the 2010 and 2015 proceedings

1. [10]

   In the 1960s the applicant attended the Catholic Seminary at Springwood where he studied for the Catholic priesthood. He was subsequently ordained as a Catholic priest and went on to work in that capacity in the Newcastle Maitland Diocese and in other parts of the state.

2. [11]

   The applicant first arrived at the Newcastle Maitland Diocese as a deacon in the Mayfield Parish in 1972. On 23 February 1973, the offender was moved to the Singleton Parish where he remained until November 1975, when he was appointed to the St Pius X High School as a teacher. The school, a boys’ school for Years 7 to 10, was situated at Park Avenue in Adamstown. The school accommodated its priest teachers in residential quarters on the school grounds. The applicant lived in the priests’ quarters at St Pius X until he was moved on 12 January 1980 to the Charlestown Parish, where he worked as the assistant priest.

3. [12]

   On 11 December 1981 the applicant was again transferred, this time to the Taree Parish as the Assistant Priest. He remained in Taree for some five years, before being transferred to the Waverley College in Sydney on 12 May 1986. He worked at the College as a teacher. The applicant remained at this location until approximately 1994.

4. [13]

   At this time the applicant was informed by the Newcastle Maitland Diocese that he would not be permitted to associate with children or young people any longer in his role as a priest. Although continuing to work within the Catholic Church, the applicant was subsequently moved to duties that did not involve contact with children, working at the Missionary of The Sacred Heart at Kensington, and later as a librarian at the Chevalier Resource Centre in Sydney.

5. [14]

   In 2007 a complaint was made to police alleging that another Catholic priest, Peter Brock, had sexually assaulted a number of children who he had met in the 1970s and 1980s through his duties as a priest in the Newcastle area. The investigation into Peter Brock led to the discovery of evidence concerning the applicant’s sexual abuse of boys in and around the same period.

6. [15]

   Statements were obtained from 39 men who alleged that they had been the victim of sexual misconduct by the applicant when, as children, they had encountered the applicant through his work for the Catholic Church.

7. [16]

   The sheer scale of the offending of this applicant, reflected in the agreed facts in the 2010 and 2015 proceedings, is difficult to summarise.

8. [17]

   Whilst we have carefully taken into account all of the agreed facts from the 2010 and 2015 proceedings, the seriousness of the abuse meted out to almost 60 young boys over many years by the applicant makes concise description difficult.

9. [18]

   It is sufficient to set out a selection of the agreed facts relating to the offences that illustrate the scale and scope of the offending. In so characterising these incidents we do not intend to diminish the severity of all of the offences committed by the applicant and the significant effect they have had on all the victims. The following extracts are examples taken from the applicant’s written submissions on this appeal.

10. [19]

    The offences with which the applicant was charged and convicted were:

    1. (1)

       indecent assault upon a male contrary to s 81 of the Crimes Act 1900 (NSW), for which the maximum penalty was 5 years imprisonment (20 offences in 2010; 23 offences in 2015);

    2. (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. (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 decisions of the sentencing judge

1. [20]

   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.

2. [21]

   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:

3. [22]

   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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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”.

4. [23]

   At [57] her Honour addressed “Multiple offences; totality and accumulation; parole; special circumstances”. Her Honour said:

5. [24]

   As earlier indicated, the 2015 sentence concerned offences committed against an additional 18 victims during the same period as the offences which were the subject of the 2010 sentence.

6. [25]

   At [9] the primary judge noted that the imposition of an aggregate sentence for the charges was now possible (a reference to the introduction in 2010 of s 53A of the Crimes (Sentencing Procedure) Act) and “a consideration of concurrency and accumulation on the previous matters is now required”.

7. [26]

   Since the applicant pleaded guilty only after the trial was due to start, only a 10% discount on sentence was afforded by the primary judge: [42].

8. [27]

   The primary judge considered a number of factors. (Where her Honour repeated what was said in the 2010 sentence, or did not add any additional remarks, those factors have not been summarised.)

   1. (1)

      [15]-[16] “Threats to keep activities secret”: The applicant threatened to physically punish victims, or expose them as homosexuals, if they complained. He taunted victims that their complaints would be fruitless. Many children who did complain were punished.

   2. (2)

      [17]-[18] “Disregard for community expectations by those in authority”: Although complaints were made to the school, generally no action was taken. The applicant believed his reputation was “smeared” by sexual abuse allegations while he was in Taree between 1981 and 1985. The primary judge commented that this “sensitivity ... confirms that his criminality was well known and ignored”.

   3. (3)

      [19] “Planning – Individual Complainants”: The applicant targeted the most vulnerable boys. Generally they came from difficult family backgrounds and their parents “paid unquestioning respect to the offender as a member of the Catholic Church”. The grooming process employed by the applicant “allowed him to offend whenever and wherever he chose, sometimes apparently spontaneously”.

   4. (4)

      [20]-[29] “Planning – organised criminal activity”: The primary judge noted that the additional offences required an “updating of previous conclusions regarding the issues of planning and organisation”. Her Honour found that at least two other church officers, Fathers Brennan (the school principal) and Picken, actively or tacitly colluded in the offending. Father Brennan received complaints but punished complainants. The applicant’s commission of offences in public places indicated his confidence that he would not be stopped by Father Brennan. Similarly, offences were committed in the presence of Father Picken on trips to the Wingham Presbytery. The primary judge found that these priests “knew of and either ignored or encouraged his activities”. Her Honour referred to the “staggering” number of victims and said “the offender operated as if he was at some paedophilic smorgasbord, entitled to abuse boys at any time or place of his choosing”, including public or semi-public places. Her Honour concluded “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”.

   5. (5)

      [30]-[31] “Planning as a whole”: Her Honour indicated that this feature was not fully appreciated in the 2010 sentence. Her Honour made a finding of “significant planning and involvement of others in the criminal organisation to the required standard”. Her Honour said “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”.

   6. (6)

      [32] “Physical and sexual abuse”: Skin contact, infliction of pain, restraint and “extended touching or fondling all increase the objective seriousness of the act of indecency”.

   7. (7)

      [39]-[41] “Where the offences were committed”: The primary judge rejected the Crown’s submission that the fact that offences were committed at school, at church or on excursions was a separate circumstance of aggravation. However, her Honour noted that some offences were committed after children had confessed to the applicant and occurred in or near the confessional area. Her Honour commented “one can only imagine what effect this confrontation must have had on the boys’ mental state”.

   8. (8)

      [43]-[47] “Age of the offender”: There was no evidence of specific difficulties faced by the applicant. The primary judge said “absent any evidence to the contrary [the applicant] could have many years still available to him”. Her Honour acknowledged, as she did in the 2010 sentencing judgment, that the applicant’s age “may reduce the consideration of general and specific deterrence”. However, “a sentence that reflects the seriousness of the offending is necessary”.

   9. (9)

      [50]-[54] “Delay”: The primary judge said this factor did not assist the applicant. However, her Honour noted that the court would “take care to sentence him to a regime that would have been appropriate if all the matters had been dealt with together”, namely, 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”.

   10. (10)

       [55]-[56] “Conditions in custody”: The primary judge rejected the applicant’s complaint that he shares a section of the prison with serious offenders; that he is shackled and his books have been lost; and that he has no one to discuss his interests with.

   11. (11)

       [57]-[59] “Remorse / specific deterrence / rehabilitation / likelihood of reoffending”: The primary judge discerned “no progress in the degree of [the applicant’s] insight into the very serious nature of his offences. He displays no remorse and no empathy for his victims”. Her Honour said the applicant demonstrated “self absorption” and a “sense of entitlement” in focussing on his own present needs and comfort. “He does not appear to have ever reflected that the effect of his abuse on 57 human beings has been, for some of them, to take away any enjoyment of life”.

The grounds of appeal

1. [28]

   The grounds of appeal were as follows:

Evidence on the appeal

1. [29]

   On 24 May 2016 the applicant filed a “notice of application for extension of period within which notice of intention to appeal or to apply for leave to appeal has effect”. The applicant relies on two affidavits of Ms Hill, a solicitor employed by the Legal Aid Commission of NSW in support of his application for extension of time:

   1. (1)

      the 27 September 2016 affidavit sets out various delays in obtaining transcripts, exhibits, a complete “remarks on sentence” and a merits advice from a Public Defender; and

   2. (2)

      the 7 October 2016 affidavit corrects an error made in the 27 September 2016 affidavit regarding who filed a notice of intention to appeal in July 2010; and states that since Correctional Services NSW lost the applicant’s personal belongings (including his legal papers) in 2013 he has been unable to refer to his records for the period between July 2010 and July 2012.

The application for an extension of time

1. [30]

   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.

Ground one – taking into account sentencing practices at the time of offending

1. [31]

   The primary judge said at [57] of the 2010 judgment:

2. [32]

   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.

3. [33]

   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.

4. [34]

   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):

5. [35]

   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):

6. [36]

   In CPW v R [2009] NSWCCA 105 at [69] James J said (McLellan CJ at CL and Adams J agreeing):

7. [37]

   In Magnuson v R [2013] NSWCCA 50 Button J said at [84]-[90] (McClellan CJ at CL and Bellew J agreeing):

8. [38]

   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):

9. [39]

   Similarly, Basten JA said at [26]:

10. [40]

    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:

11. [41]

    It is unnecessary to rehearse in detail the relevant provisions governing the parole and the early release of prisoners during the relevant period.

12. [42]

    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.

13. [43]

    That Act provided for the specification of a non-parole period in sub-section 4(2):

14. [44]

    Sub-section 4(2) was later amended by the Parole of Prisoners (Amendment) Act 1970 (NSW) so as to provide:

15. [45]

    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).

16. [46]

    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.

17. [47]

    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:

18. [48]

    The Sentencing Act was ultimately replaced by the Crimes (Sentencing Procedure) Act, sub-section 44(2) of which provides that:

19. [49]

    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].

20. [50]

    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.

21. [51]

    That is clear in the 2010 sentencing judgment, at [57], when addressing accumulation, her Honour said:

22. [52]

    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.

23. [53]

    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.

24. [54]

    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.

25. [55]

    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.

26. [56]

    Accordingly the applicant has established error in ground one.

Ground two – rehabilitation

1. [57]

   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:

2. [58]

   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.

3. [59]

   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].

4. [60]

   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].

5. [61]

   Her Honour further referred to a number of other matters going to the likelihood of reoffending and rehabilitation:

   1. (1)

      the applicant’s apology in court (and its manner of delivery): [42];

   2. (2)

      passages in a psychologist’s report which revealed the applicant’s lack of insight into the moral depravity of his actions: [43];

   3. (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. (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. (5)

      the applicant was recommended for assessment for the sex offender’s program while in custody and supervision upon release: [50].

6. [62]

   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.

7. [63]

   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].

8. [64]

   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.

9. [65]

   Ground two should be rejected.

Ground three – the planned organised criminal activity

1. [66]

   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”.

2. [67]

   A key feature of her Honour’s judgment was as follows:

3. [68]

   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):

4. [69]

   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”.

5. [70]

   Ground three should be dismissed for the following reasons.

6. [71]

   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.

7. [72]

   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:

8. [73]

   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.

Ground four – sentence unreasonable or plainly unjust

1. [74]

   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.

2. [75]

   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.

Resentencing

1. [76]

   As error has been identified it is necessary for the Court to re-sentence the offender.

2. [77]

   However, it does not follow that the Court is required to vary the applicant’s sentence. In Kentwell the High Court said at [43]:

3. [78]

   In Abdulrahman v R [2016] NSWCCA 192 Bathurst CJ said at [3]-[4]:

4. [79]

   This is a case where no lesser sentence is warranted. Our reasons for reaching this conclusion are as follows.

5. [80]

   The applicant relies on the following affidavit evidence in the event the Court proceeds to re-sentence:

   1. (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. (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.

6. [81]

   Consideration of re-sentencing must commence with the maximum penalties provided for the relevant offences:

   1. (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. (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. (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).

7. [82]

   The overall scale and nature of the applicant’s offending is staggering:

   1. (1)

      in the 2010 sentence:

   2. (2)

      in the 2015 sentence:

8. [83]

   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.

9. [84]

   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.

10. [85]

    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.

11. [86]

    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.

12. [87]

    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.

13. [88]

    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:

14. [89]

    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.

15. [90]

    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.

16. [91]

    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.

17. [92]

    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.

18. [93]

    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.

19. [94]

    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.

20. [95]

    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.

21. [96]

    Particular features of the objective seriousness of this offending we regard as important were as follows:

    1. (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. (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. (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. (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. (5)

       These offences were not spontaneous or opportunistic. This was a systematic exploitation of his position of trust at the school;

    6. (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. (7)

       The applicant targeted the most vulnerable boys. Generally they came from difficult family backgrounds.

22. [97]

    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.

23. [98]

    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;

24. [99]

    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.

25. [100]

    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.

26. [101]

    We have taken into account the Form 1 matters in 2010 and 2015:

    1. (1)

       2010: Sequences 2 (GZ), 5 (JD), 6 (GZ), 7 (JD), 9 (AM), 10 (GZ), 10 (PL), 11 (PL), 13 (AF), 14 (CH), 15 (GK), 17 (MG), 20 (PD1), 21 (JC), 25 (PD2), 27 (TS), 29 (SM1), 32 (CC), 41 (JO), 42 (JO), 47 (BD), 48 (MO), 52 (MB), 53 (DB), 53 (BM), 54 (DB), 56 (MR1), 60 (RP), 61 (JW), 61 (SP), 62 (JW), 64 (PE);

    2. (2)

       2015: Sequences 1 (MB), 4 (MB), 4 (PF), 5 (PF), 6 (PF), 9 (TF), 11 (RM), 11 (SAW), 15 (DW), 16 (DW), 17 (DW), 18 (DW), 21 (MW), 23 (MW), 24 (MW), 28 (MH), 29 (MH), 32 (MG), 38 (SL), 39 (SL), 40 (SL), 41 (LB), Form 1 to Count 21 Ex officio (PM).

27. [102]

    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.

28. [103]

    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.

29. [104]

    Particular matters concerning the applicant’s subjective circumstances we have taken into account are:

    1. (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. (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. (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. (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. (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. (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. (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.

30. [105]

    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.

31. [106]

    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.

32. [107]

    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.

33. [108]

    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].

34. [109]

    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.

35. [110]

    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.

36. [111]

    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.

37. [112]

    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.

38. [113]

    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.

Orders

1. [114]

   Accordingly the Court makes the following orders:

   1. (1)

      Extend the time for the filing of the notice of appeal and application for leave to appeal to 24 May 2016.

   2. (2)

      Leave to appeal granted.

   3. (3)

      Appeal dismissed.