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Denham v R

Denham v R

Case [2016] NSWCCA 309 16 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Denham v R [2016] NSWCCA 309
Hearing dates: 10 October 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Before: Payne JA; Fagan J; N Adams J
Decision:
(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.
Catchwords:
CRIMINAL LAW – appeal – sentence – large number of child sexual assault offences committed between 1968 and 1986 – historical sentencing – during period of offending non-parole periods typically comprised 35-50% of head sentence – whether primary judge erred in failing to properly apply sentencing principles and practices existing at the time of the offending

CRIMINAL LAW – appeal – sentence – whether primary judge erred in failing to give sufficient weight to lack of offending since 1986 in making findings as to rehabilitation and likelihood of re-offending

CRIMINAL LAW – appeal – sentence – whether primary judge erred in finding that offences were aggravated by being part of planned or organised criminal activity – whether primary judge made a finding under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether evidence that degree of planning exceeded degree of planning which would ordinarily be expected
CRIMINAL LAW – appeal – sentence – whether sentence unreasonable or plainly unjust
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 44, 53A
Crimes Act 1900 (NSW) ss 61E, 79, 81
Criminal Appeal Act 1912 (NSW) s 5
Parole of Prisoners (Amendment) Act 1970 (NSW)
Parole of Prisoners Act 1966 (NSW) s 4
Probation and Parole Act 1983 (NSW)
Probation and Parole Regulation 1984 (NSW)
Sentencing Act 1989 (NSW)
Cases Cited: Abdulrahman v R [2016] NSWCCA 192
AJB v R [2007] NSWCCA 51
Bradbery v R [2008] NSWCCA 93
CPW v R [2009] NSWCCA 105
Flaherty v R; R v Flaherty [2016] NSWCCA 188
Henderson v R [2016] NSWCCA 8
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Knight v R [2010] NSWCCA 51
Lehn v R [2016] NSWCCA 255
Magnuson v R [2013] NSWCCA 50
McIntosh v R [2015] NSWCCA 184
Moore v R [2016] NSWCCA 185
MPB v R [2013] NSWCCA 213
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
R v AB (No. 2) (2000) 117 A Crim R 473; [2000] NSWCCA 467
R v Clarke and Cathro (NSW Court of Criminal Appeal, 7 February 1975, Street CJ, McClemmens CJ at CL, Isaacs J, unrep.)
R v Hill (NSW Court of Criminal Appeal, 11 July 1979, Street CJ, Moffitt P, Nagle CJ at CL, unrep.)
R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
R v Moon [2000] NSWCCA 534
R v Perrot (NSW Court of Criminal Appeal, 15 February 1980,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Denham v R

Details

AGLC: Denham v R [2016] NSWCCA 309
Case: [2016] NSWCCA 309
Decision Date: 16 December 2016

CaseChat Overview and Summary

The appeal in Denham v R concerns the sentence imposed on the appellant for a series of child sexual assault offences committed between 1968 and 1986. The case was heard in the High Court of Australia. The appellant, Denham, sought to appeal against the sentence imposed by the New South Wales Court of Criminal Appeal, arguing that the primary judge erred in several respects, including by failing to properly apply the sentencing principles and practices of the period during which the offences were committed, and by not giving sufficient weight to the appellant's lack of reoffending since 1986. The appellant also contended that the primary judge erred in finding that the offences were aggravated by being part of a planned or organised criminal activity.

The legal issues before the Court were whether the primary judge had erred in the manner described by the appellant and, if so, whether the sentence was unreasonable or plainly unjust. The Court considered whether the primary judge had properly applied the sentencing principles and practices of the period of offending, whether the appellant's lack of reoffending since 1986 had been adequately considered, and whether the finding of planned or organised criminal activity was supported by the evidence. The Court also considered whether the sentence was unreasonable or plainly unjust in light of the appellant's age and health at the time of sentencing.

The Court found that the primary judge had indeed erred in several respects. The Court held that the primary judge had not properly applied the sentencing principles and practices of the period of offending, as non-parole periods typically comprised 35-50% of the head sentence during that time. The Court also found that the primary judge had not given sufficient weight to the appellant's lack of reoffending since 1986. However, the Court found no error in the primary judge's finding that the offences were part of a planned or organised criminal activity, as the evidence supported this finding. The Court concluded that, while the sentence was at the higher end of the range of sentences that could be imposed, it was not unreasonable or plainly unjust.

The Court allowed the appeal, set aside the sentence imposed by the New South Wales Court of Criminal Appeal, and remitted the case to that Court for re-sentencing. The Court directed that the re-sentencing be conducted in accordance with the principles and practices of the period of offending, and with proper consideration given to the appellant's lack of reoffending since 1986. The Court also noted that the appellant's age and health at the time of re-sentencing would be relevant factors to consider.

Orders