Denham v R

[2016] NSWCCA 309

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, Street CJ, Nagle CJ at CL, Lee J, unrep.)
R v PWH (NSW Court of Criminal Appeal, 20 February 1992, unrep.)
R v Roberts [2003] NSWCCA 309
R v Ryan (No 2) [2003] NSWCCA 35
Rosenstrauss 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].

Judgment

1. THE COURT: Pursuant to s 5(1)(c) of the Criminal Appeal Act1912 (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. 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. 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).

   1. 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.

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. 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. 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. 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. 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. 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

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.

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.

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.

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.

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.

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.

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.

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.

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.

[15] Seq 64, F 1 offence: In the 1960’s and 1970’s the applicant frequently visited the [surname] family and often stayed overnight. The parents told their children that as the applicant was training to be a priest and later was a priest he was to be treated as a member of the family. Sometime between 1968 and 1971 the applicant pulled the victim, [PE], onto his lap and slid one hand down the child’s pant [sic] and fondled his penis. The victim was between five and eight years of age.

[16] Seq 66. When [PE] was aged between 12 and 14 years the applicant was alone with the victim in the lounge room and knelt on the floor, undid the child’s pants exposing his penis, which he then began to stroke causing it to become erect. The applicant placed the boy’s penis into his mouth and began to suck it. After a time the victim ejaculated into the applicant’s mouth.

[17] Seq 2; Form 1: [GZ] commenced year 7 at St Pius X High School in 1977 where the applicant was a teacher. Early in the year the applicant attended at the victim’s class and removed him and took him to his bedroom within the priest quarters and shut the door and told him to undress. The applicant took hold of the victim’s penis and began to stroke and fondle it for a short time before telling him to get dressed and return to class.

[18] Seq 3: This offending continued frequently and became more serious. Later in the year the applicant attended at the victim’s classes and took him to his bedroom within the priest quarters. The applicant removed his priest vestment and pants and underpants and sat on the bed in front of the victim wearing only a shirt. The applicant took hold of the child’s penis and fondled it and then performed fellatio upon the victim. The applicant asked the victim to suck his penis but he refused to do so.

...

[20] Seq 6; Form 1: The applicant again asked [GZ] to come to his bedroom within the priest quarters. The applicant undressed himself and had the victim undress and then performed fellatio upon the victim.

[21] Seq 7: The applicant then directed the victim to lie face down on the bed and positioned himself behind the victim and pushed his penis into the victim’s anus. This was very painful and the victim instinctively clenched his muscles preventing the applicant from pushing his penis any further. The applicant continued to attempt to place his penis in the victim’s anus and when unable to do so pushed it between the victim’s buttocks until he ejaculated on the boy’s back. Following this incident there were a further 10 incidents where similar acts were performed on [GZ] during 1977.

[23] Seq 63: [SM] was a student at St Pius X High School from 1977 to 1982. During 1978 the applicant was seated at a desk at the front of the class and called the victim to him, indicating that he had to sign something. The applicant then grabbed the victim on the buttock and started to squeeze it whereupon the victim knocked the offender’s hand away and said “You fucking poofter, don’t do that again”. The applicant responded, “Well you shouldn’t go flashing your blonde bum around me all the time” and struck the victim with the back of his hand.

[25] Seq 5; Form 1: In 1979 [JD] was called out of class to attend upon the applicant. The applicant reached out and began to fondle the victim’s penis and genitals on the outside of his clothing.

[26] Seq 6: The victim was frightened and stood still. The applicant pulled the victim’s pants down and pushed the boy forward so that he was bent over the applicant’s desk. The applicant then forced his erect penis into the victim’s anus, pushing his penis hard inside the victim which caused the victim terrible pain. The victim stopped himself from yelling out as he did not want other students to find out what was happening and eventually pulled away telling the applicant he wished to return to class. The applicant handed the victim a $10 note.

[96] Count 4: [LB] was born on [date] and his family attended church every Sunday. He started year 7 at St Pius X High School in 1976 aged 12. In March of 1977 when he was in year 8 he walked past the applicant’s office and was called inside by the applicant. The applicant shut the door and sat down whilst the victim stood. The applicant said “Pull your pants down” and the victim did so. The applicant pulled back his black robes revealing he had nothing on underneath. The applicant’s penis was erect and he started to masturbate himself. He pulled the boy close so that he was resting on the applicant’s lap and continued to masturbate until he ejaculated, some of which went on the victim. The applicant held the victim tight and stared into his face which made the victim feel threatened. The applicant then let the victim go but told him to come back at lunch time.

[97] At lunch time when the victim returned he was caned all over the legs, buttocks, shoulders and arms for a few minutes by the applicant.

[101] Count 6: [DH] was born on [date] and had a difficult family life due to his father being a violent and abusive alcoholic who the victim was scared of. He commenced year 7 at St Pius X High School in 1977 aged 12 and the applicant was his year master. The applicant became a mentor and friend to the victim who thereafter confided in the applicant about his home life. One morning before school had started the applicant required the victim to accompany him to the applicant’s bedroom within the priest quarters. The applicant told the victim to sit next to him on the bed and began to talk about the boy’s family life. The applicant rubbed the victim’s thigh and then rubbed the victim’s genitals on the outside of his clothing. The victim froze and the applicant said, “Everything is ok. We’re just friends.” The applicant had the victim lie down on the bed and remove his pants. The applicant rubbed the victim’s penis until it was erect repeatedly saying “You’re enjoying this. This is good.” After a short time the applicant told the victim to roll onto his stomach and started to rub and fondle his legs and backside. The applicant inserted his finger into the victim’s anus causing sharp pain and moved his finger in and out of the victim’s anus. The victim felt sick and described the pain as terrible and buried his face in the covers of the bed and cried. Eventually the applicant stopped and told the victim to roll over and pull up his pants. The victim was too upset to pull up his pants and continued crying whilst the applicant was talking to him about his erection and saying that it meant he wanted it and he enjoyed it. The applicant told the boy if he told anyone the applicant would tell his father that he wanted it and that the victim had come to him. The victim made no complaint as he feared being beaten by his father and felt ashamed that he had an erection and thought that he would be labelled a homosexual and bullied by others at school.

[102] Count 7: Within a month of Count 6 the victim was outside a classroom when the applicant asked him to accompany him to his room. Once inside the applicant shut the door and directed the victim to sit on the bed. The applicant stood in front of the victim and lifted up his priest robes, pulled down his trousers and underpants and exposed his erect penis. The applicant demanded “Suck my dick” and grabbed the victim by the back of the head and pulled his head toward him and inserted his penis into the victim’s mouth. The applicant moved his penis in and out of the victim’s mouth and the victim was gagging and having difficulty breathing and crying. The applicant continued until he ejaculated into the victim’s mouth. The victim spat the ejaculate onto the floor and the applicant pulled up his pants and told the victim to return to class. As the victim was leaving the applicant said “Don’t forget you’re the one who comes with me. If you tell anyone I will tell your family and friends, no one will believe you.”

[103] Count 8: Later in 1977 the victim was outside a classroom when the applicant approached him and directed him to his office. Once inside the office the applicant shut the door and told the victim to stand in front of the desk. The applicant stood behind the victim and told the victim to remove his pants and underpants. The applicant pushed the back of the boy’s head onto the desk. The applicant shoved his erect penis into the victim’s anus and the victim felt excruciating pain and started to cry. The applicant continued to push the victim’s head into the desk and reached around with the other hand and started to masturbate the victim. The applicant continued until he ejaculated and thereafter left his penis in the boy’s anus and continued to masturbate the boy. The boy was crying and the applicant said “you loved it. You wanted it. You want more and more.” Afterwards the applicant said “If you tell anyone I will tell your dad. No one will believe you. You came to me.” The victim went to the toilet and cleaned his anus and noticed that it was bleeding. He left school for the day and was not assaulted again by the applicant. At the beginning of the following year the victim told the school principal, Father Brennan, that the applicant had put his penis in his mouth and anus and Father Brennan became enraged and said “How dare you make up these lies. How dare you come into my office and make up lies about a man of this stature!” and caned the victim six times.

[133] [PM] was born on [date]. He was orphaned at a young age and adopted by an older cousin and her family of 5 children who were very strict Catholics. He commenced year 7 at St Pius X High School in 1978 and the applicant was his religious teacher. The victim recalls one particular boy being picked on by the other boys and always having to see the applicant after class.

...

[135] Count 21: In 1979 when the victim was in year 8 he was again called into the applicant’s room so that his books could be inspected. The applicant fondled the victim’s penis and made the victim fondle his. The applicant then pushed the victim’s head down and inserted his penis into the victim’s mouth; he moved the victim’s head up and down on his penis and told the victim if he did not do so he would be punished. The applicant said “if you ever say anything to anyone I will throttle you, don’t you dare” to which the boy replied “no Sir, no I won’t”. The boy complained to his adopted mother who made a complaint to the school.

[136] Count 22: In 1980 when the victim was in year 9 and aged 14 or 15 years he was dragged from the playground by the applicant for misbehaving. He was taken to the applicant’s office and given the cane. The applicant then sat the victim down and talked to him about his behaviour. The applicant put his hand down the victim’s pants and fondled his penis. The applicant then pulled the victim’s pants and his own pants down. The applicant then bent the victim over the desk and inserted his penis into the victim’s anus. The victim was crying “no please don’t!” The applicant ignored the victim’s plea and continued and the victim felt incredible pain. The victim complained to his adopted brother and adoptive parents but his adoptive father hit him for lying and his adoptive mother made a complaint to the school.

[141] [RM] was born on [date] and commenced year 7 at St Pius X High School. The applicant was his year master in 1979.

[142] Form 1; attached to count 25: One lunch time in year 7 the applicant stood behind the victim in the tuck shop line and say “You look hot. Would you like an ice block?” to which the victim replied “yes”. The applicant then pushed himself against the back of the victim so that the applicant’s genitals were pushing against the middle of the victim’s back. The applicant placed his hands around the victim and into his pockets and dropped change into each pocket and pulled the victim towards him. He then rubbed the victim on the penis and the scrotum for about 5 seconds before walking away.

[143] Count 25: In September or October of year 7 the victim was standing outside a class having been sent from the room and the applicant approached him and asked what he was doing. The victim explained and the applicant took the boy to Father Brennan’s office. Father Brennan was not there. The applicant shut the door and put his arms around the shoulders of the victim and said “you can’t be getting sent out of class. You’ll be punished.” The applicant moved the victim in front of him so that the victim was facing the desk and had his back to the applicant. The applicant undid the victim’s belt and pulled down his pants and underpants. The applicant grabbed the victim by the back of the neck and pushed his face down on to the desk. The applicant took out the cane and swished it twice but did not hit the victim and said “this is for being sent out of class.” The applicant inserted the cane into the victim’s anus and the victim felt extreme pain and screamed. The applicant pushed the cane in and out four times and the victim screamed and struggled the whole time but the applicant held him down. The applicant then caned the victim four times on the backside and the victim continued to scream and sob. The victim pulled his pants up and the applicant told him to stand on the other side of the desk and hold out his hand. He caned the victim twice on each hand saying “this is for being a cry baby” and told the victim to return to class. The victim went to the toilets until he stopped crying. On about twenty other occasions throughout year 7 the applicant came up behind the victim and rubbed his genitals on the victim’s back and put his hands in the victim’s pockets and rubbed his penis and scrotum.

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

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. 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 decisions of the sentencing judge

The 2010 sentence

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.

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:

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.

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. [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”.

23. 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)

The 2015 sentence

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.

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”.

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].

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. [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. [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. [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. [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. [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. [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. [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. [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”.

1. [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”.

2. [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.

3. [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

28. The grounds of appeal were as follows:

1. Her Honour erred by failing to properly apply the sentencing principles and patterns that existed at the time of the offences in several material respects.

2. Her Honour erred in failing to take into account or alternatively, failing to give sufficient weight to the applicant’s lack of offending since 1986 in making findings as to rehabilitation and whether he was unlikely to re-offend.

3. Her Honour erred in finding that the offences were aggravated by being part of a planned or organised criminal activity.

4. Her Honour erred by imposing an overall sentence and effective non-parole period that are unreasonable or plainly unjust.

Evidence on the appeal

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. 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. 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

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

31. 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.

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.

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.

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):

[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.

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):

[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.

36. 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.

37. 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.

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):

[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.

39. 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.

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:

[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.

Consideration of ground one

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

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.

43. 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”.

44. 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.

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 Act1989 (NSW).

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.

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:

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.

48. 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).

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].

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.

51. 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)

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.

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.

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.

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.

56. Accordingly the applicant has established error in ground one.

Ground two – rehabilitation

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:

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; ...

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.

Consideration of ground two

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].

59. 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].

60. 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].

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.

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].

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.

65. Ground two should be rejected.

Ground three – the planned organised criminal activity

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”.

67. 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.

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):

[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.

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”.

Consideration of ground three

70. Ground three should be dismissed for the following reasons.

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.

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:

[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.

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

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.

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

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

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]:

[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)

78. 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.

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

Further evidence on re-sentencing

80. 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.

Re-sentence - consideration

81. 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).

82. 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);

3. 32 Form 1 matters;

2. 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);

3. 23 Form 1 matters.

Objective seriousness

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.

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.

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.

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.

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.

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:

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…

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.

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.

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.

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.

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.

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.

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.

96. 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;

1. 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;

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

3. 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;

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

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.

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;

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.

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.

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

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. 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).

Subjective circumstances

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.

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.

104. 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.

Conclusion on resentencing

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.

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.

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.

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].

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.

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.

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.

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.

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

114. 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.

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Endnote

Amendments

24 January 2017 - Corrections to coversheet

Decision last updated: 24 January 2017