R v Denham - [2015] NSWDC 21

District Court

New South Wales

Medium Neutral Citation: R v Denham [2015] NSWDC 21
Hearing dates: 22 and 25 August 2014, 20 November 2014
Decision date: 23 January 2015
Jurisdiction: Criminal
Before: H. L. Syme DCJ
Decision:
The offender is sentenced to an aggregate term of imprisonment of 18 years, to commence on 23 January 2015 and expiring on 22 January 2033 with a non-parole period of 13 years.

Catchwords: CRIMINAL LAW – Sentence – Historical Child Sex Offences – Multiple Offences – Catholic Priest – Aggravating Features - Planning – Possibility of Death in Custody
Legislation Cited: Crimes Act 1900
Cases Cited: R v PWH (unreported) CCA 20.2.92
R v DCM (unrep 26/10/93, NSWCCA)
Category: Principal judgment
Parties: The Crown
John Sidney Denham
Representation: Counsel:
O’Brien (DPP)
Averre (Offender)

File Number(s): 2011/00382572 and 2012/00211543
Publication restriction: Non publication order relating to anything that identifies any complainants

Judgment

The offender was born in September 1942 and is now 73 years of age. Between 1968 and 1986 he committed multiple sexual offences against male children whom he met through his official capacity as teacher and priest with the Catholic Church.
In August 2008 he was arrested and charged with a number of offences relating to this time. He pleaded guilty to 29 separate offences, taking into account 32 allied matters on 20 form 1 schedules, for offending against 39 male children. He has been in custody since the 14th August 2008, serving a sentence of 19 years and 10 months with a non-parole period of 13 years and 10 months. His first available date for release is 13 June 2022. Reasons for decision were handed down in July 2010. [1]
1. .R v Denham2009/10327 .2/07/2009
Investigations continued and a further 18 men made statements to police in similar terms to the previous complaints; that is that they had been sexually abused as children when they were under his care or authority as a teacher or priest. The offender was subsequently charged on 30 November 2011. He pleaded not guilty. On 31 July 2013 as the trial was due to commence, he entered a plea of guilty to 25 separate charges with a further 23 charges to be taken into account on 14 form 1 schedules.
This sentence relates to those later offences. As they were committed in the same time frame as the previous matters, often in similar circumstances there is some overlap of findings and sentence considerations. The totality of all of the offending behaviour gives rise to considerations of accumulation and concurrency with the previous offences. To some extent therefore it is necessary to revisit some of those considerations and findings. Much of the background information is the same. For ease of interpreting these reasons and to avoid repetition where appropriate I will reference the previous reasons by footnote.
The general background to these matters and the offender’s position as priest and teacher is as contained in the 2010 decision. [2] It was after publicity for those matters that the current complainant’s broke their silence.
2. paragraphs 1 to 6.

OFFENCES TO BE INCLUDED

In all there are: 2 offences under s 79, (Buggery), for which the maximum penalty was at the time of the offences was 14 years; 23 offences under s 81 (indecent assault), maximum at the time 5 years. The offender has asked the court to take into account 23 allied matters on 14 Form 1 schedules.
The offences relate to 18 complainants, who were aged between 11 and 17 years old at the time of the criminal activity, which occurred between 1975/76 and 1979. In the main, the Form 1 offences relate to similar behaviour to the substantive offences charged and the penalties imposed will reflect that.

REPRESENTATIVE OFFENCES

The facts relevant to the current charges including Form 1 matters, an understanding of the facts in the previous matters and specific reference in many sections of the current agreed facts, reinforce the understanding that the charged offences are representative of behaviour over a period of time. The current agreed facts for example note that the type of behaviour complained of was repeated many times. [3] Where this is the case findings are made that offending behaviour was far from isolated. In any event, an overview of the charges makes that point more than adequately. Otherwise in relation to how to treat a finding that offences are representative of a wide course of behaviour, I rely on my reasoning in the 2010 decision. [4]
3. counts 18, 20, 21, 25.
4. 2010 decision.4 paragraphs 14, 15 and 16.

TOTALITY OF OFFENDING BEHAVIOUR

Each individual offence is serious. Some of the offences represent the most abhorrent and sadistic combination of circumstances that courts are likely to see. Taking into account the behaviour of the offender during the entire period of the offending and the background information contained in both sets of facts the offender’s pattern of offending was even wider that was previously understood. This observation will become relevant when considering where the sentences for the current offences sit in relation to the 2010 sentences. In the 2010 matter, separate and distinct sentences were imposed for individual offences. An attempt was made to ensure that as far as possible individual complainant’s matters were the subject of a distinct sentence. The imposition of an aggregate sentence for the whole of the current charges is now possible and a consideration of concurrency and accumulation on the previous matters is now required. Each individual offence will still be given separate consideration and an indicative sentence, but without the need to set individual commencement dates, the process will be more manageable and better comprehended. It is the most reasonable way of dealing with the current number of charges. The number of offences and complainants do not make it practical to allow individual accumulation.

HISTORICAL OFFENCES

The offences were committed between 1975 or 1976 and 1979. Most occurred while he was employed as a teacher at St Pius X, after having been transferred from from the Singleton Parish and before he was transferred to Charlestown Parish.
I otherwise adopt 2010 reasons for decision, [5] as to how an assessment of the objective seriousness of historical offences should be reflected in the sentences imposed.
5. paragraphs 17 to 21

OBJECTIVE SERIOUSNESS OF THE OFFENCES

In considering the aggravating features there are many facts common to all or most of the offences. I will describe and refer to them globally. For offences containing further aggravating features making them objectively more serious, I will reference those matters individually.
There is also commonality in sentence considerations and background information for the previous and current matters. I will briefly recap those matters, many of which were dealt with in more detail in 2010.

COMPLAINANTS

The complainant’s were from devout Catholic families who as part of their family obligations were required to attend school or church chosen by their parents and to honour and respect their priests and teachers. As a result they became easy prey for the offender who had to do little to gain their trust. He already had authority over them as their teacher and priest and their parents required the children to show respect to him. Significantly in the present offences, as in the prior offences, he targeted young children who were at a vulnerable stage of their personal development and education, entering puberty and high school. Often the targeted children were even more vulnerable due to their family circumstances and the offender knew this.

THREATS TO KEEP ACTIVITIES SECRET

On many occasions the offender threatened the children with a further physical harm or with exposure to the school community as a homosexual if they complained. The threats had an immediate detrimental effect. Most children took the threats so seriously they did not complain to anyone until many years later. There is significant evidence that the offender knew that any complaints would be fruitless and he occasionally taunted the children with this knowledge, saying for example, “who is going to believe a kid over a priest,” [6] Such statements no doubt increased the boys’ feeling of vulnerability and hopelessness.
6. facts para 179.
Many of the children were frightened to complain but those who did were variously not believed by their parents or when they did complain to the school authorities, usually Father Brennan, the principal, further physical punishment was meted out to them. As I will expand on later, this is relevant to a consideration of planning involving others in the process.

DISREGARD FOR COMMUNITY EXPECTATIONS BY THOSE IN AUTHORITY

On several occasions parents complained to the church or the school. To their knowledge those complaints were not acted upon. No public action was taken to acknowledge the substance of what was clearly the offender’s reputation within the school for habitual sexual assaults. However, in his interview with psychologist Ms A. McGregor [7] the offender said that he received “oblique warnings” while at St Pius X, and was told “the fathers don’t like that kind of thing” [8] . Ironically, he also told Dr Nielssen [9] that he believed his reputation was “smeared” by sexual allegations while he was in Taree (1981 to 1985). The fact that he felt the allegations of sexual impropriety “unfair” and still felt so in 2010 is objectively illogical. As he was still actively criminally abusing children up to 1985 and had been doing so for a decade, his sensitivity is unjustified. This disclosure by the offender confirms that his criminality was well known and ignored.
7. Duffy Robbilliard report 11/08/2009
8. Report Dr O Nielssen 29/06/2010
9. ditto
This offender was transferred between parishes frequently. He had been transferred from Mayfield to Singleton in February 1973, then to St Pius X in November 1975, to Charlestown in January 1980, to Taree in December 1981 and to Waverly College in May 1986. In all locations he was employed as assistant priest or teacher with religious duties. In 1994 the Newcastle Maitland Diocese took the action of directing he not work with children any more, but he continued to work within the church, without further investigation, or notification to anyone that he was considered a danger. [10]
10. Paragraph 32 of my previous reasons refer to the church’s response in as much detail as was or is before this court. There is no evidence that the church disclosed to police why such a direction was made. No safeguards were ever put in place to protect the community from this obviously dangerous individual.

PLANNING -INDIVIDUAL COMPLAINANTS

At the school, he selected the most vulnerable boys to abuse. The Crown submissions show the detail that of the 18 complainants in the present charges, half were targeted during their first year a high school. This pattern is also evident in the previous charges. The Crown submits that as a teacher of several years standing the offender knew how vulnerable these young males were in the first few months of high school. That is a reasonable conclusion. Almost without exception, he also chose children whom he knew came from a difficult family background, and whose parents paid unquestioning respect to the offender as a member of the Catholic Church. The grooming process employed by him for such children included befriending them, offering them treats, abusing and then threatening them if they told of his behaviour. The parents, always respectful of his position in the church afforded him unwarranted status. As a result of this unquestioning respect and the protection offered by his co-workers this offender had a remarkable 18 years of uninterrupted offending in several parishes and schools. Even when particular offences appeared to be spontaneous, they were in reality a result of his long term grooming activity and cultivation of complicit adults. This allowed him to offend whenever and wherever he chose, sometimes apparently spontaneously.

PLANNING- ORGANISED CRIMINAL ACTIVITY

The school, St Pius X, was described by nearly all of the complainants in this and in the previous proceedings as a brutal school where the offender’s predilection for sexually abusing young boys was well known, where punishment was meted out mercilessly, and where any complaint about the offender was ignored at best, and brutally punished on other occasions. [11] The offender’s sadistic and violent behaviour toward children contributed to the atmosphere of fear in the school.
11. 2010 decision paragraphs 2 to 6,
The totality of the agreed facts in both matters brings with it an understanding which requires an updating of previous conclusions regarding the issues of planning and organisation of these paedophilic acts. The apparently protected status of the offender throughout his offending is a matter so obvious it cannot be ignored.
The degree of offending as now before the court represents a considerable increase in the criminality of the offences viewed as a whole and nearly a doubling of the number of offences committed at the school. It is a continuous and very wide pattern of offending, the likes of which is fortunately not often seen in these courts. It is now clear that the offender not only targeted these vulnerable children continuously, but organised himself, either with or without the assistance of his work colleges to ensure that he was placed in positions where the abuse could continue unhindered, and complaints would be punished, fobbed off or ignored .Frequent transfers enabled him to commence with a new group of victims who knew nothing of his prior reputation.
The combined sets of facts lead to an inescapable conclusion of the active or tacit collusion by at least 2 other church officers, during the years of offending behavior. Those officers must have known of this offender’s behavior and did nothing. There is sufficient evidence in both sets of facts to conclude complicity in the offending behavior by these other church officers which supports a finding of an organised criminal activity. I am aware that such a conclusion requires a finding beyond reasonable doubt. My reasoning follows.
The principal, Father Brennan (who is now deceased) had been told on numerous occasions of Denham’s depraved behavior, by boys and parents yet did nothing about it. Father Brennan ignored complaints by several boys and at least 2 parents. [12] Even after complaints, he continued to send boys out of class to this offender’s room where the children were abused [13] . This offender was obviously confident of that support and he obtained it from Principal Brennan.
12. 2010 decision, paragraphs 3,129,130 . Agreed facts 2014 para 95, 104, 224, 226, 236
13. Count 24
Furthermore some of this offender’s abuse occurred in public places, such as in front of class, in the playground, in Father Brennan’s office [14] or in church, even outside the confessional. [15] This offender was always very confident that he would not be stopped from this abusive behavior. He frequently taunted the boys that they had no one to complain to, on one occasion even saying “ if you want to tell someone, tell God” [16]
14. count 25
15. count 15
16. para 234 facts 2014.
A similar observation can be made about a number of trips taken to the Wingham Presbytery, in both these and the previous facts. The behavior of both priests, drinking, providing alcohol for the children speaks of a planning and actual support from one to the other of this organised abuse.
One child [17] recalls having the impression that another person was present during a late night session with the offender. In the previous sentence [18] the same priest is referred to as being generally present at times the offender abused children. There is no other plausible explanation other than that the other priest knew what was occurring.
17. PH, count 5
18. 2010 decision para 5, 110 to 121, 126, 137, 146 &168
In giving evidence in the current proceedings, the offender was asked whether any other person knew of his abuse. He denied it. However Mr Denham has both a history and an interest in minimising his offending behavior. He did not offer any explanation as to how his offending continued in the light of the complaints to Father Brennan and in the presence of Father Picken. I did not find his evidence convincing. The obvious conclusion drawn from both sets of facts is that at least Father Brennan and the Wingham priest, Father Picken knew of and either ignored or encouraged his activities.
The sheer volume of boys involved in this sexual abuse and the number of times that each child was abused by the offender is staggering, even to this court. Taking both sets of facts together, he abused 57 boys, some of them repeatedly. Taking into account only the period when he was a teacher at St Pius X the offender operated as if he was at some paedophilic smorgasbord, entitled to abuse boys at any time or place of his choosing. In the 4 ½ years at that school 41 men who have now complained, detailing over 81 events, many representative offences, many of them in public or semi public places. It defies belief that his abuse of children was not only widely known but ignored or condoned by those in authority, at least at the school.

PLANNING AS A WHOLE

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. [19]
19. Paragraphs 1-9 of the 2010 decision detail the facts then known. In relation to the present case, I rely on paragraphs 22, 51, 67, 95, 124, 159, 181, 222 and 239 of the agreed facts.
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 feature of each offence.

PHYSICAL AND SEXUAL ABUSE

In considering the objective seriousness of the indecent assaults, the entire circumstances of the offending will be taken into account, however with respect to the physical acts, actions such as touching inside the clothing (skin contact) the infliction of pain either during or associated with the indecent assault, restraint during or as part of the act of indecency and any extended touching or fondling all increase the objective seriousness of the act of indecency.

HARM CAUSED TO VICTIMS

Reading a combination of these and the previous facts, it becomes clear that the offender preyed on vulnerable children who sometimes had come from difficult life circumstances, or were vulnerable due to their size or shyness. The facts disclose that the offender seemed to relish the fact that their vulnerability was increased by his abuse and threats and violence towards them, by smirking, or making flippant comments at the time of abuse. [20]
20. agreed facts para 16,42
In the previous matter I reached a conclusion [21] that the severe consequences of the offending behaviour was “sadly a usual and common result of this type of offending. They do not form part of separate circumstances of aggravation.”
21. 2010 reasons paragraph 25

I have reconsidered this conclusion for some of the current matters. As the crown rhetorically asks” How much worse does it get?” These offences were all committed against youths as they were approaching puberty, often when they were at a vulnerable stage of their school lives, by a person they were required by their family obligations to come into contact with and show respect to. For some who were already in otherwise vulnerable situations, the attention given to them was catastrophic both immediately and for their whole lives.
Victims of this man attribute the difficulties they have encountered in later life, such a relationship difficulties, substance misuse and depression and mental illness, directly to the abuse they suffered at the offender’s hands. One of the victims summed up the effect on him by saying “what he has done has affected my entire life. Every day is a struggle”. The immediate physical toll was significant for many victims .The agreed facts note the children to have been confused [22] terrified [23] scared and helpless [24] . The immediate emotional toll was often crushing. The long term consequences are frequently devastating [25] . Where there is evidence that the initial and long term consequences are substantial, it will amount to an aggravating circumstance. [26]
22. Complainant MG agreed facts para14
23. Complainant STL Agreed facts para 34
24. Complainant DAH Agreed facts para 75
25. Victim impact statements of PM and ST
26. Counts 20, 21 and 22.

AGE OF THE COMPLAINANTS AT THE TIME OF THE OFFENCES.

For many of these offences, the children were young or very young. For the s 79 and s 81 offences there is no gradation of age included as an element of the offence, therefore the commission of such offences against children is a significant aggravating feature. Generally, the younger the victim the more serious is the criminality. [27]
27. R v PWH CCA, 20 February 1992

BREACH OF TRUST AND POSITION OF AUTHORITY

It is an obvious aggravating feature if the offender was in a position of trust and violated that trust by sexually assaulting a child. In the 2010 reasons [28] I described how the consideration is relevant to the case of this offender. Those findings are similarly relevant to these offences. Breach of trust in his position as priest, teacher or where he obtained specific parental authority to take children away from their home are significant aggravating features of each of these charges.
28. 2010 decision paras 35 to 38

WHERE THE OFFENCES WERE COMMITTED

The offences were committed at the school, church or related excursions, therefore a feature of the children being under his authority. It is not a separate circumstance of aggravation. I reject the submission of Mr Smith that if offences were not committed at home or school it automatically lessens the seriousness of the offence.
Some offences were committed after the children had confessed to the offender, and were in or near the confessional area. One can only imagine what effect this confrontation must have had on the boys’ mental state. The fact that the offences occurred at school or church will be taken into account as part of the consideration of a breach of trust/ position of authority and is demonstrative of that breach.
In either case, the place where they were committed was places where the children ought to have been able to feel safe. Due to the planning of the offender, they were not.

SUBJECTIVE CIRCUMSTANCES/ CONSIDERATIONS IN MITIGATION

PLEA OF GUILT

The offender pleaded guilty after the trial was due to start. All witnesses, including many from the previous proceedings who were to give tendency evidence had been conferenced and were ready to participate in the current proceedings. Never the less there is utilitarian value in the plea and he will be afforded a 10% discount on the sentence that would have otherwise have been appropriate. This will apply to both the indicative individual sentences and the aggregate sentence imposed.

AGE OF OFFENDER

The age of the offender at the time of sentence is relevant primarily on the basis that imprisonment may be more onerous for an older individual. There is no automatic reduction because of age. It is a matter to be considered together with the other circumstances of the case:

Age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years”: [29]
29. R v DCM (unrep 26/10/93, NSWCCA) per Badgery-Parker J.

It is submitted on behalf of the offender that any further significant accumulation on the current sentence will see the offender released “well into his eighties would constitute a crushing sentence, and therefore is to be avoided”. Reliance is placed on R v Holyoak[30] where the offender was 75 years of age. The court considered the offender’s age should usually be taken into account when jailing a man of advanced years. However, in that case the court found that notwithstanding the offenders advanced age, and proven physical frailty, those facts alone (my emphasis) would not be a reason to alter the sentence for what the court said were horrendous crimes of sexual abuse.
30. (1995) 82 A Crim R 502
The crown submits that the age of the offender is something that ought properly be considered where it is likely that the offender would die in prison because of the length of the sentence being considered. The case of R v Giardini [31] supports that submission. However, in that case there was reliable evidence of the offender’s illness and prognosis of a much shortened life expectancy, from which the court drew a conclusion that the offender would not survive the minimum term of a combined sentence.
31. NSWCCA 25 Febraury 1993
There is no evidence of specific difficulties this offender will face. He is 73 years old now, and will be 79 when eligible for parole on the present sentence. There is little evidence of his health status, apart from a recent operation for some urinary difficulties, and a self-report of some minor issues which are controlled by medication. Dr Nielssen noted him to be cognitively alert. I observed in court that he was fully engaged in the procedures and forthcoming in his defense. Physically he appears to be a large and reasonably robust man for his age. He has apparently lead a physically undemanding life, and absent any evidence to the contrary could have many years still available to him.
In any event these offences are collectively of such seriousness that his advanced age now cannot be an overriding consideration. Notwithstanding that, it is acknowledged that the offender’s age and the length of time between the offences and this sentence may reduce the consideration of general and specific deterrence as a sentencing consideration. He offended over a period of 18 years and then enjoyed 22 years untroubled by these offences. His current incarceration will see him in custody for nearly 14 years if he is released at the expiration of his non parole period. Notwithstanding his age, a sentence that reflects the seriousness of the offending is necessary.

OTHER CONSEQUENCES OF OFFENDING

In the 2010 decision [32] reference was made to the effect of this offender’s behavior on the institution of the church within society. It does not form a part of the aggravating circumstances.
32. paragraph 26

GOOD CHARACTER

In previous proceedings some evidence of good character evidence was called, and commented on. [33] It offered him little assistance then. No further evidence was given of any good deeds the offender stated he contributed to the community. There is no mitigation afforded to the offender under this heading.
33. 2010 decision para 28 to 31

DELAY

In the previous decision [34] . I referred to the consequences of delay in that matter. My Comments are relevant to the present proceedings as there is further delay in the current sentence .
34. 2010 decision para 32,33
Mr Denham complained to Dr Nielssen [35] that the current charges were not laid originally due to “ lack of proper investigation”. This is not entirely true. For reasons which are commonly known, the victims in these matters did not complain originally no doubt for their own personal reasons. Thereafter , there was a delay of nearly 2 years due to the guilty plea only being entered after the trial was due to commence. Thereafter he sought further adjournment of the current sentence proceedings to seek advice as to the prospects of appeal on the 2010 sentence.
35. Report Dr O Nielssen 11 October 2014
The effect of the delay in sentencing for these charges is largely that is makes for a more complicated sentencing process, as the court will have to consider not only the objective seriousness of each of the current offences, apply the appropriate discount for a later plea, compare them in general terms to the previous offences, for which he received a 25% discount for an early plea, and then consider the issue of accumulation of the current set of sentences on the previous combined sentences. Provided the court undertakes this process, the complication caused by delay in these charges can be offset fairly.
There is no evidence of any detriment to the offender as a result of delay in the current sentences. Sometimes, delay can benefit to an offender if he is able to show that within the time of delay, progress has been made toward rehabilitation. I have heard evidence from the offender and read the most recent report from Dr Nielssen. [36] Mr Denham demonstrates no increased level of insight or remorse now than he displayed 4 years ago [37] . There is no evidence that the offender is in any better personal position regarding his risks of re offending. The most recent report from Dr Nielssen confirms that except that he is older his risk factors remain the same. This is not surprising as the offender is not yet eligible to undertake any pre release program for sex offenders. However despite his interest in self education he has not taken any steps of which I am aware to educate himself on relevant issues, such as the consequences of his offending.
36. ditto
37. 2010 decision para 46 to 50
Therefore delay is not a factor that assists him. The court will however take care to sentence him to a regime that would have been appropriate if all the matters had been dealt with together, taking into account any changed personal circumstances.

CONDITIONS IN CUSTODY

This court makes an observation from the offender’s evidence and interview with Dr Nielssen, [38] that Mr Denham now places himself to be in the position of a martyr . He considers the church to be “wrong” and seems to be offended that some of former colleagues had been told not to visit him. In his evidence he expressed distaste that he shares his section of the prison with serious offenders. He complained about being shackled during transport and about losing some of his books. The tenor of his evidence and his self-report to Dr Nielssen is that he considers himself to be of a different class to other inmates, and obviously not used to not being afforded status . He stated ”the saddest thing is that he has no one to discuss his interests with” (when referring to his books “The Moral Essays of Lincoln” and the ”History of the Later Roman Empire”). On a positive note he said he had recently met up with a colleague from another diocese and now had someone to communicate with in the yard.
38. Dr Nielssen report 11/10.2014.
My observation of these reports and his evidence is that notwithstanding his complaints , Mr Denham is not enduring harsh treatment while in custody. He no doubt finds it boring.

REMORSE/ SPECIFIC DETERRENCE/ REHABILITATION/ LIKELIHOOD OF REOFFENDING

I have heard Mr Denham give evidence in the present and previous sentence proceedings. I discern no progress in the degree of his insight into the very serious nature of his offences. He displays no remorse and no empathy for his victims.
He told the court that he was currently housed with criminals of the worst kind and offered the insight to both the court and Dr Nielssen that he observed that many of these criminals has been sexually abused as children. However, even though he told Dr Nielssen that “(he) know(s) more than ever that abuse of any sort was just wrong”, [39] I do not find that this observation supports a step toward rehabilitation. Mr Denham knew at the time of his offences it was wrong. He threatened children if they told anyone. Father Brennan covered for him. He admits to having warnings. He always knew this abuse was seriously wrong, and criminal. He nevertheless continued it for years.
39. report Dr O Nielssen11/10/2014
He told Dr Nielssen that he could not remember many of the offences. The frequency of his offending was such that sexual, sadistic abuse of vulnerable children was a lifestyle choice for him. He has not demonstrated remorse. The self absorption and sense of entitlement which was so obviously present during the offending, remains. He told Dr Nielssen [40] in the most recent report that he does not indulge in self pity, but went on to complain about what he considers to be unfair treatment in custody , such as lack of books and being shackled during transport . My observation is that he has no remorse, no contrition , no understanding of the enormity of his crimes and is still focused on his own 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.
40. report Dr O Nielssen11/10/2014

INDIVIDUAL OF OFFENCES

Complainant: MG

Plea Count 1: s.81 indecent assault male (masturbation)

Plea Count 2: s.81 indecent assault male (masturbation)

Form 1 matter: s.81 indecent assault male (fondling then masturbation)

MG was born 28 September 1961. His parents were devout Catholics. In 1975 he met the offender, who was then the assistant parish priest at Singleton. The boy was an altar boy.

Form 1 matter (attached to Plea Count 1)

The offender set up a youth club, located at the back of the presbytery. One day after school the boy was at the club alone. The offender invited the boy into the presbytery. MG complied. The offender gave the boy a bear hug and moved his hands down to the boy’s groin touching his penis and scrotum, outside his clothing. The offender then sat the boy down on the bed, pushed him down and undid his pants and pulled the boy’s penis out, then masturbated him until he ejaculated. The offender then made a joke about making a mess. He left the boy to clean himself.

Plea Count 1

Whilst in Year 8, the offender obtained the parent’s permission to take him to drive-in cinema at Rutherford. During the movie the offender put his hand onto the boy’s groin area and fondled his penis. The offender undid the boy’s pants and reached into his underpants and pulled out his penis. He used his thumb to rub the head of the boy’s penis until it became erect and masturbated the boy until he ejaculated. The offender then gave the boy some tissues to clean himself up with. They left before the movie finished. The offender then drove the boy home.

Objective Seriousness and Sentence

Planning for this offence includes the setting up of and attendance at the youth club. Such behaviour is typically seen as grooming .As he had cultivated a relationship with the child and parents via the youth group and the church, there was no need for threats/ coercion. The offence was committed over a relatively long time as the behaviour, occupied the time at the drive in. The fact that the offence was not committed at the home/school is of no assistance as he was under the direct and sole authority of the offender with parental consent, and confined in a car for the duration. There was skin to skin contact and he caused the child to ejaculate, a confronting event no doubt for the child. This is a serious example of indecent assault, not less than mid range seriousness. Sentence: 2 years 9 months. NPP .1 year 9 months.

Plea Count 2:

In 1976 the boy was invited down to St Pius X for a “male bonding” weekend. The boys were allocated a room to sleep in, and after they went to bed the offender came into the room, gave the boy a hug and said “I love you and God loves you.” Whilst hugging the boy he slipped his hand down the front of his pyjamas and held his penis and scrotum. The offender fondled the boy’s penis in an effort to make it erect. The offender then laid the boy down on the bed. The offender pulled the boy’s pants down and his top up, then masturbated the boy until ejaculation. The offender then said goodnight and left. The boy had a shower to clean himself up. At the end of the weekend the offender dropped the boy home.

Objective Seriousness and Sentence

Planning is similar to the previous matter. The offender obviously planned the weekend with sexual abuse in mind. There was skin to skin contact and ejaculation was caused. This is an offence of not below mid range seriousness.

Sentence 2 years and 9 months. NPP 1 year and 9 months.

Complainant: SL

Plea Count 3: s.81 indecent assault male (fondling genitals)

Form 1 matter: s.81 indecent assault male (fondling genitals)

SL was born on 16 August 1962. His family was a strict catholic family and they would regularly attend Church in Toronto, and frequently invite priests to the home. In 1975, aged 12, he started year 7 at St Pius X. In 1976 in Year 8, he started helping out as an altar boy. The offender was his English Teacher and had contact with the child in both roles.

Plea Count 3

Early in first term of Year 8, 1976, the boy was assisting with an early Mass. The offender requested he come to his quarters, promising a book. At the offender’s direction the boy walked over to the shelf. The offender then came up behind him and grabbed him with both hands around his ribs and tickled him hard. The boy bent over and the offender pulled him close, so that the boy’s bottom was rubbing against the front of the offender. The offender was holding him tightly. The offender then reached down with his right hand and grabbed the boy’s genitals. The boy started struggling and saying “Don’t touch me let go.” The offender did let go and the boy ran from the room. The incident lasted for 15 to 30 seconds. The boy was terrified.

Form 1 matter (attached to Plea Count 3)

One Sunday morning towards the end of 1976 the boy was again acting as altar boy. He was pulling on a white robe, the offender grabbed the boy from behind and tickled him hard and pulled him close, rubbed his body against the boy. The offender grabbed the boy’s penis and squeezed it tightly. The boy said “What are you doing? Let me go.” The offender said “Just mucking around. Get ready for mass.” The offender let him go and looked happy. He was smiling.

Form 1 matter (attached to Plea Count 3)

In 1977 the boy started year 9 and started running the Youth group. He organised a movie night on Friday nights, for about 20 children. The offender arrived. Once the movie started the offender tickled the boy from behind. The boy bent forward and the offender then grabbed his penis and testicles. The boy struggled and the offender let go after a couple of seconds. During the film club the offender grabbed the boy on the penis at least 6 times. These incidents lasted for a couple of seconds.

Form 1 matter (attached to Plea Count 3)

The boy turned 17 in August 1979. He obtained his provisional licence. In November or December 1979, the offender organised for the boy to drive him to Sydney, on a weekend. On the way home the offender grabbed the boy on the penis. The boy became angry and grabbed the offender’s hand and flung it off him. He then punched the offender in the arm. The offender went quiet after this. He did not say a word for the whole way home. The offender did not touch the boy again.

Objective seriousness and Sentence

This is a usual level of planning with the offender obviously intending abuse when he requested the child’s attendance. The time was relatively short and the touching appears to be outside the clothes. It is a representative offence, which for this boy makes it clear it was not an isolated incident. The 3 x Form 1 matters are of similar severity but underline the observation that the offender in general picked on compliant and vulnerable victims. This is an offence of lesser seriousness.

Sentence: 1 year NPP 8 months.

Complainant: LB

Plea Count 4: s.81 indecent assault male (half-naked embrace of boy, masturbate self then ejaculate on him

Form 1 matter: s.61 common assault (excessive caning)

LB was born on 20 May 1963. His mother was Catholic and the family attended church every Sunday. In 1976 he started Year 7 at St Pius X, aged 12. He described the school as being extremely violent. The offender occasionally taught the boy’s religious class.

Plea Count 4

In March of 1977 when the boy was in Year 8 he walked past the offender’s office. The offender called him into his office, shut the door and moved a chair to the front of his desk. The offender sat whilst the boy stood. The offender told him to pull his pants and underpants down. The boy did so expecting to be caned. The offender pulled back his black robes revealing that he had nothing on underneath. The offender’s penis was erect and he started to masturbate himself. The offender pulled the boy close so that he was resting on the offender’s lap. The offender maintained a tight grip on the boy. The offender continued to masturbate until he ejaculated, some of which went on the boy. The offender told the boy to clean himself up. The offender then held the boy tight and stared into his face. The boy felt threatened. The offender then let him go and told him to go back to class but told him to come back at lunch time. The boy left.

Form, 1 matter (attached to plea Count 4)

At lunchtime he returned to the offender’s office. He entered the room and the offender grabbed him by the hair and shut the door. The offender then caned the boy all over his legs, buttocks, back, shoulders and arms. This continued for a few minutes and then the boy was allowed to leave.

Objective Seriousness and Sentence

Aggravating circumstances include the breach of trust, position of authority, threatening behaviour, ejaculating on the child, physical contact in an enforced semi naked state. The F1 matter reinforces the violent nature of the entire event. This was not an isolated incident. An offence of above mid range seriousness.

Sentence: 3 years and 6 months NPP 2 years and 2 months.

Complainant: MH

Plea Count 5: s.81 indecent assault male (masturbate boy)

Form 1 matter: s.81 indecent assault male (fondle penis outside clothes)

Form 1 matter: s.81 indecent assault male (fondle penis inside clothes)

MH was born on 21 July 1965. His family was devoutly Catholic. He was an altar boy from the age of 10. In 1977 he started year 7 at St Pius X when he was 11 years old. The offender was the boy’s Year Master and presided over masses for which the child served as altar boy. The offender had taken an interest in the child’s older brother (who committed suicide in 1992). The offender was kind and affectionate to the boy (in a way that suggests grooming). The boy did not like this.

Form 1 matter (attached to Plea Count 5)

In 1977 the boy was near his locker. The offender put his hands behind his back and then backed into the boy so that his hands were touching the child’s groin and started fondling his penis.

Form 1 matter (attached to Plea Count 5)

About two months later the boy was acting as an altar boy and had assisted the offender with a mass. After the mass the offender removed his robes. He then grabbed the front of the boy’s school pants and put his hand inside and fondled the boy’s penis. The boy grabbed his hand and pulled it out and told the offender he had to leave. He ran and went back to class.

Plea Count 5

Towards the middle of 1978, he was invited on a trip to Wingham with the offender and two other students. They were to stay there at the presbytery for the whole weekend, with the offender and the local priest Father Picken. On the Saturday the boys went to the rainforest. When the boys returned to the Presbytery the offender was drinking wine with Father Picken. They offered some to the boys who all drank a couple of glasses of wine. When they went to bed the offender came in, put his hand down the front of his pyjama pants and started to fondle his penis. The offender started to masturbate the boy. The boy trusted the offender so allowed him to do it. After a couple of minutes the boy told him to stop. The offender did not. The boy twisted so the offender could not access his penis. The offender then said “This is our little secret. Don’t bother telling anyone because no one will believe you.” The boy felt that there was someone else with the offender.

Objective Seriousness and Sentence

Planning involved organising the children, their parents and the Wingham priest. The child had nowhere to escape to for the whole weekend. Threats not to tell and skin to skin contact aggravate the acts.

Sentence 2 years 3 months NPP 1 year 6 months.

Complainant: DH

Plea Count 6: s.81 indecent assault male (digital penetration of anus),

Plea Count 7: s.81 indecent assault male (forced fellatio)

Plea Count 8: s.79 buggery (penile penetration of anus)

DH was born on 10 October 1964. He had a difficult family life. His father was a violent and abusive alcoholic. DH was very scared of his father. In 1977 he started high school at St Pius X, aged 12. The offender was his Year Master. He knew of the victim’s difficult home life including that his father was violent. He befriended the child. The child confided details about his difficult home life.

Plea Count 6

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

Objective Seriousness and Sentence

The Crown submits this offence falls within the high range of objective seriousness. This is conceded by counsel for the offender. Significant planning by grooming the child. Significant pain was caused by the actions of the offender, physical actions a high degree of seriousness for the offence charged. Sentence 4 years 6 months NPP 2 years 11 months.

Plea Count 7

Within a month of the first incident, when outside a classroom, the offender again asked the boy to accompany him to his room. The child did as required. They returned to the offender’s quarters. The offender shut the door and directed the boy to sit on the bed. The offender stood in front of him, lifted his Priest’s robes up and pulled down his trousers and underpants exposing his erect penis. The offender demanded, “Suck my dick.” The offender then grabbed the boy by the back of the head and pulled his head towards him. The offender inserted his penis into the boy’s mouth. The offender then moved his penis in and out of the boy’s mouth. The boy was gagging and having difficulty breathing. He was crying. The offender continued to hold the boys head. The offender continued until he ejaculated into the mouth of the boy. The boy then spat the ejaculate onto the floor. The offender then pulled up his pants and said “Go back to class” As the boy was leaving the offender said “Don’t forget, you’re the one who comes with me. If you tell anyone I’ll tell your family and friends. No one will believe you.” The boy left and returned to his locker. He collected his bag and left school for the day. He did not tell anyone.

Objective Seriousness and Sentence

Planning took the form of significant grooming. This was a sadistic offence, accompanied by threats and physical force. Forced fellatio and ejaculating into the child’s mouth is physically confronting. The child was crying, signifying his fear. The time involved was not very short as submitted. This is a high level of seriousness.

Sentence 4 years 6 months NPP 2 years 11 months.

Plea Count 8

The next occasion was later in 1977, again at the school. The offender told the boy to go to his office. When they got to the office the offender shut the door. He then told the boy to stand in front of the desk and told him to remove his pants and underpants. The offender put his hand on the back of the boy’s head and pushed it into the desk. The offender then shoved his erect penis into the boy’s anus. The boy felt excruciating pain and started to cry. The offender continued to push the boy’s head into the desk and then reached around with his other hand and started to masturbate the boy. The offender continued until he ejaculated. Once he ejaculated he left his penis in the boy’s anus and continued to masturbate the boy. The boy was crying. The offender said “You loved it. You wanted it. You want more and more.” The offender eventually pulled his penis out and got dressed. He told the boy to get dressed. He said “If you tell anyone I’ll tell your dad. No one will believe you. You came to me.” The boy left the room and went to the toilets. He cleaned his anus and noticed that it was bleeding. He then left school for the day. He did not tell anyone.
When he returned to school in 1978 the boy told Father Brennan that the offender had put his penis in his mouth and anus. 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 his stature!” Father Brennan then caned the boy 6 times.

Objective Seriousness and Sentence

The aggravating circumstances are grooming/ planning, threats, infliction of physical pain, forced intercourse causing physical harm (bleeding anus). Extreme immediate emotional distress. This is an offence of significant gravity. The Crown submits this offence falls within the highest-range of objective seriousness and that it is difficult to contemplate a more serious type of offending.

Sentence 12 years and 7 months. NPP 8 years and 2 months.

Complainant: TF

Plea Count 9: s.81 indecent assault male (fondle genitals inside clothing)

Plea Count 10: s.81 indecent assault male (fondle penis inside clothing)

Form 1 matter: s.81 indecent assault male (fondle penis inside clothing)

TF was 12 years old when he started Year 7 at St Pius X in 1977.
In March 1977 the boy was in class and the offender called him out. The boy followed the offender into another room. The offender sat on a chair at the teacher’s desk and put the boy’s school book on the desk and told the child to “Sit on his lap”. The offender started to rub his hand up and down the leg of the boy, then moved his hand onto the boy’s crotch. His hand was still on the outside of the boy’s pants. The boy tried to move the offender’s hand away but the offender kept putting it back on the boy’s genitals. The offender then pulled down the fly of the boy’s pants, then put his hand inside the underpants and began to touch the boy’s penis. The offender said “Do you want me to go further?” The boy jumped off the offender’s lap and left as soon as he could. He went back to class.

Objective Seriousness and Sentence

Aggravating features planning, abuse of authority at school, skin to skin contact. Not an isolated incident.

Sentence: 1 year and 4 months. NPP 10 months.

Plea Count 10

About two to three weeks later a similar offence occurred. This is a representative offence. The boy complained to the principal Father Brennan. He told him that the offender was putting his hands down my pants and playing games with him. Father Brennan said “I’ll look into it.” The boy was sent back to class.

Form 1 matter (attached to Plea Count 10)

In 1978 the boy started year 8. The offender repeated the actions, physically holding the child so he could no leave. The boy complained to Father Brennan a further three times but the assaults continued.

Objective Seriousness and Sentence

Aggravating features; as above.

Sentence 1 year and 4 months. NPP 10 months.

Complainant: MW

Plea Count 11: s.81 indecent assault male (fondle genitals outside clothing)

Form 1 matter: s.81 indecent assault male (fondle genitals outside clothing)

MW was born on 21 March 1964. He was adopted by devout Catholics at two weeks of age. As he was growing up they attended Church every Sunday. He began Year 7 at St Pius in 1977, aged 12. When he started he was a devoted student. These incidents occurred when he was 13.

Form 1 matter (attached to Plea Count 11)

The offender was his religious teacher. He would call the boy to the front during writing exercises requiring him to come around to the offender’s side of the desk which was the opposite side to where all the students were sitting. The desk came up to the belly button of the boy. The offender then asked the boy to read something. As he was reading the offender grabbed the boys arm and pulled him close. The offender put his hand on the boy’s hip and then moved it down to the boy’s groin. The offender then fondled the boy’s groin, his hand on the outside of the boys clothing. The offender was saying “Do you like that, I like that.” The offender became aroused when touching the boy. The offender had his hand cupping the boy’s testicles whilst he rubbed the head of his penis with his thumb. The offender maintained a grip on the boy with his left arm. The boy tried to jump back but the offender held him there. The offender said “Keep reading, keep reading.” The boy was terrified. It continued until someone in the class put their hand. It lasted for at least 10 minutes. The boy just kept reading as he was worried about others finding out. He did not tell his friends because he would be bullied. Everyone at the school would say “Denham’s a poof.” The boy went to the toilet after class and cried for about half an hour.

Plea Count 11

The students used to go to Chapel for a service throughout the day. After the service the offender asked the boy to remain after the rest of the class had left. The boy was kneeling next to the altar. The offender knelt next to him and started discussing prayers. The offender reached across with his right hand and touched the boy on the genitals. His hand was on the outside of the boy’s clothing. The offender then moved his hand around to the boy’s bottom and squeezed and rubbed the boy’s bottom. Then he started touching the boy on the penis and scrotum again. He had his hand cupping the boy’s scrotum and was rubbing the boy’s penis with his thumb.

2 x Form 1 matters (attached to Plea Count 11)

The offender engaged in similar behaviour to the first F1 matter, in front of a class full of students.

Objective Seriousness and Sentence

The aggravating features include these events being in public, with the offender having no fear of being stopped. The fear for the child of being discovered being bullied heightened the child’s emotional reaction. Otherwise physical acts outside the clothing. Not a short time. Planning involved as the offender targeted the child out of a class of students. Not an isolated incident.

Sentence 1 year and 4 months. NPP 10 months.

Complainant: MB

Plea Count 12: s.81 indecent assault male (masturbate boy)

Form 1 matter: s.81 indecent assault male (masturbate boy)

MB was born on 21 October 1964. His parents, in particular his father were devout Catholics. The family would attend church every Sunday. In 1977 the boy started High School at St Pius X. He was an altar boy for the school masses. In 1978 the offender became the boy’s German teacher and also tutored him. The first time the boy went for tutoring there were two other students with him.

Form 1 matter (attached to Plea Count 12)

The next occasion the boy went for tutoring he was the only student. Whilst he was reading the offender pulled the boy’s pants and underpants down. The offender then started to masturbate the boy. The boy was in shock. He continued reading. The offender was saying things like “It’s OK.” The boy does not remember why the offender stopped but he did stop and pulled the boy’s pants back up. The boy was confused and later embarrassed about the incident. He did not complain to anyone about what happened. Following this incident the offender gave the boy favourable treatment at school and was always very friendly towards him.

Plea Count 12

About a week later the boy again attended tutoring. He was the only student. Again the offender pulled the child’s pants and underpants down while he was reading. The offender then masturbated the boy, saying “It’s OK” and generally reassuring him. It went for longer than the first time. The offender was close to the boy and the boy could feel the offender’s breath on his neck. The boy thought it was strange because the room was open and someone could walk in. The offender just stopped. The offender then pulled the boys pants up. On one of these occasions the offender drove the boy home.

Form 1 matter

The following Monday the boy was again at tutoring. The offender abused him in the same way. The boy did not tell anyone as he was ashamed. He was especially keen not to let anyone at school know what was happening because he was concerned he would be teased about it. He did not go back to tutoring with the offender. Football started on Monday afternoons. From this time on he did not have anything to do with the offender outside of the classroom. The offender however continued to favour him and started calling him “my little footballer”.

Objective Seriousness and Sentence

Aggravating circumstances of the offence involves, planning by arranging the tutorials and seeing the child alone. Skin to skin contact. Not an isolated incident.

Sentence 1 year and 10 months. NPP 1 year and 1 month.

Complainant: PF

Plea Count 13: s.81 indecent assault male (fondle genitals over clothing)

Plea Count 14: s.81 indecent assault male (fondle genitals over clothing)

Form 1 matter: s.81 indecent assault male (fondle genitals over clothing)

PF was born on 16 September 1965. His parents were Catholic but did not attend church. In 1978 he started in year 7 at St Pius X, aged 12. He was a quiet shy boy. The offender was the Role Teacher for this boy.

Form 1 matter (attached to Plea Count 13)

With the first month of starting at the school, the boy was sent from his class to the offender as he was in trouble for something. The offender told the boy to come inside his office. He shut the door and sat at his desk. The boy stood in front of the offender who started talking to the boy about being good. He put his hands into the boy’s shorts pockets and pulled the boy towards him. The offender then moved his fingers around inside the boy’s pants touching the boy on the testicles and penis. The offender continued for about 5 to 10 minutes. He continued to tell the boy to be good and try and improve his grades. The offender was looking at the boy’s face and then back down at his genitals. The offender looked like he was enjoying himself. His voice changed tone. The offender stopped. He told the boy to be good and gave him the cane once on the fingertips of both hands. He again warned the boy to be good and inferred that he had been lenient with him. The boy returned to class. He did not tell anyone what happened. He felt degraded, ashamed and embarrassed.

Form 1 matter (attached to Plea Count 13)

Within a week or two of this first the offender abused him in a similar way again.

Form 1 matter (attached to Plea Count 14)

About 2 weeks after this incident the boy was again sent to the office where the offender behaved in a similar way. On the subsequent occasions other boys were also awaiting punishment.

Plea Count 13

The boy was again sent from class to see the offender. He attended the offender’s office and the offender placed his hand into the pockets of the boy and touched the boy on the penis and scrotum. The boy had a hole in his pocket and the offender touched the skin of the boy’s penis.

Objective Seriousness and Sentence

Aggravating features. These offences are not isolated. The sexual abuse was accompanied by physical abuse. Touching outside the clothing, but not of short duration.

Sentence 11 months. NPP 8 months.

Plea Count 14

The boy’s music teacher Mrs Orman sent him to the offender for being disruptive in class. The boy became upset in front of his teacher at having to go to the offender. She sent him anyway. The boy attended the office of the offender, who was sitting on his chair. The offender placed his hands into the boy’s pockets. The offender then touched the boy on his penis and testicles. The offender then pinched the head of the boy’s penis causing considerable pain. The offender also asked the boy if he wanted to stay around longer and talk to him. If he did so he would not get the cane. The boy said he did not want to stay. The offender then caned the boy using considerable force causing significant pain to the boy. The offender told him to be good and the boy returned to class.

Objective Seriousness and Sentence

The aggravating features are the combination of the infliction of pain as part of the sexual assault. The infliction of punishment when further sexual assault was refused is a general circumstance relating to the consequences for the child. These were not isolated incidents. Planning involved the offender targeting the boy.

Sentence 1 year and 4 months. NPP 10 months.

Victim: DW

Plea Count 15: s.81 indecent assault male (fondle genitals outside clothes)

Plea Count 16: s.81 attempt indecent assault male (expose penis in boy’s face, grab hand)

Form 1 matter: s.81 indecent assault male (fondle genitals outside clothes)

DW was born on 29 December 1964. He is the brother of SW and one of 5 brothers. His family were devout Catholics who attended Church every Sunday. In 1977 he started Year 7 at St Pius, aged 12. The offender taught the boy religion when he was in year 7.

Form 1 matter (attached to Count 15)

During class the teacher asked if any students would like to go to confession. The boy went to confession. The offender was waiting in the confession box. The boy confessed to the offender who said “Say five Hail Mary’s and six Our Father’s and sit on the bench outside.” The boy sat outside the confessional. The offender came out and sat next to him. The offender put his arm around the boy. He then reached around the front of him and fondled his genitals. The boy stopped praying and looked at the offender. The offender looked at him and continued. The boy said “Stop” the offender replied “It’s alright. It’s alright.” In a calm voice. The boy continued to tell the offender to stop. The boy was crying and moving around trying to get away. The offender held him there. After a couple of minutes the offender stopped. The boy ran to the toilets. He was confused and did not know what to do. He did not know about sex. He felt embarrassed. He did not want anyone to see him crying. When he calmed down he returned to class. He did not tell anyone.

Form 1 matter (attached to Count 15)

The next time the boy went to confession the offender was there to receive it and behaved in the same way again.

Form 1 matter (attached to Count 16)

The next time the boy went to confession the offender was again there to receive it. The offender behaved in the same way again.

Form 1 matter (attached to Count 16)

The boy was late to school one day. His teacher told him to go and see Father Brennan. As the boy was walking towards Father Brennan’s office, the offender called out called him over and directed him to a classroom, where he sexually abused him in a similar way to the abuse outside the confessional. The child was upset and crying as before.

Plea Count 15

The boy had been naughty in class and had been sent to see Father Brennan by the teacher. He walked past the office of the offender. The offender called him into the same class room, as the previous incident, and abused him in a similar way as before, putting his hand on the genitals of the boy and fondling them. This was on the outside of the boys clothing. The boy was crying and trying to get away from the offender. The offender continued to fondle the boy’s genitals. The offender then grabbed the zipper of the boy’s pants and started unzip them. The boy started struggling more strenuously so that the offender could not unzip his pants. The boy got away from the offender and ran. He again ran to the toilets and remained there until he stopped crying. Then he returned to class.

Objective Seriousness and Sentence

Planning as part of the school culture. This offence was not opportunistic as the offender sought out the boy after the first incident, calling him from the classroom. The abuse outside the confessional is a particularly egregious from of abuse as it impacts on the child’s physical, emotional and spiritual welfare. The offender physically prevented the child’s escape. The distress of the child was immediate and obvious. These where not isolated incidents. On each occasion touching on the outside of clothes, but for an extended period of time.

Sentence 2 years 3 months NPP 1 year 6 months.

Plea Count 16

During a lunch break at school the boy was to retrieve a book from his locker which was near the classroom where the offender had previously assaulted him. The offender approached him and asked what he was doing. The offender said “I’ve got to get some books for class too. Come with me and you can help me take them back to the classroom.” The boy complied. The offender then led the boy to the Priest quarters into the offender’s room and shut the door. The offender told the boy to sit on the bed. The offender then started getting books and placed them on his desk. The offender said “I need to say a prayer.” He said a prayer. The offender said “You better say a prayer. Say an ‘Our Father’.” The boy did so closing his eyes. When he opened his eyes the offender was standing about a metre from the boy with his trousers and underwear down. The offender’s penis was directly in front of the boy’s face. The offender went to grab the boy’s left hand. The boy kicked the offender to the shin. The offender lost his balance and the boy ran out the door saying “I’m going to tell Father Brennan on you.” The offender said, “Who’s going to believe a kid instead of a priest?” The boy was crying and ran to the toilets. He remained there until he stopped crying. He then returned to class.

Objective seriousness and Sentence

Aggravating features: Planning at a high level. Threats when the child protested. Serious sexual act by offender only stopped when the child ran. Immediate fear for the child. Combination of prayer and sexual abuse and confrontation of penis in the face.

Sentence 2 years 3 months NPP 1 year 6 months.

Complainant: SMW

Plea Count 17: s.81 indecent assault male (fondle genitals outside clothing)

SMW was born on 17 September 1965. In 1978 he attended St Pius X, starting in Year 7. His father was an alcoholic and used to bully him at home.

Plea Count 17

In 1978 when the boy was 12 years old he met the offender, as a teacher. . The boy used to ‘wag’ school with his friends DW and SW, and AC. They were caught in the middle of Year 7, 1978. They were sent to the offender for punishment. He was sent with SW and AC. The boys waited outside the offender’s room and were called in one at a time. AC was called in and remained there for about 5 minutes. Then the complainant was called in. The offender was sitting in his chair with another chair next to him. AC was still in the room behind a screen, facing a blackboard. The offender indicated that the complainant should sit in the chair next to the offender. The offender put his arm around the boy and said “Oh S-, you’ve been a bad boy. You’ve been whooping school. Now it’s up to you whether you want to be punished or not.” The offender then placed his right hand on the boy’s thigh and moved it up towards his groin. He then put his hand on the boy’s genitals. His hand was on the outside of the boy’s clothing. The offender then started touching the boy’s penis. The boy jumped from his chair and said “No, No way.” The offender said “Oh well this is your decision. I will have to punish you then.” The boy put his hand out and the offender caned him 5 times on each hand causing a blood blister on his left thumb. The boy cried and was made to go and stand in front of the black board. SW was then called into the room. He was caned and told to stand with the other two. After about 5 minutes they were told to leave.

Objective Seriousness and sentence

The offence was planned. The physical actions of the sexual touching were stopped by the child and he was immediately painfully punished for refusing further sexual contact.

Sentence 1 year and 10 months. NPP 1 year and 1 month.

Victim: SW

Plea Count 18: s.81 indecent assault male (forced masturbation of offender)

Form 1 matter: s.81 indecent assault male (forced masturbation of offender)

SW was born on 26 February 1966. He is the youngest of five boys. His mother was a devout Catholic. They would attend church every Sunday. In 1978 he started at St Pius, aged 11 turning 12. His brother DW was in the year ahead. The offender was the victim’s religious teacher. Shortly after the boy started at the school, he was called out to go to the offender’s office. The boy entered and was invited to sit. He did so. The offender told the boy he could come to him if he had any problems. As the boy was leaving the offender grabbed the boy’s hand, and led the boy over to sit on the offender’s lap. The offender put his arm around the boy and said “You’ll be alright, here at St Pius.” The boy then left.

Form 1 matter (attached to Plea Count 18)

Not long after this, the boy was called to go and see the offender about a fight. He went to the offender’s office, asked to close the door and sit down. He did so. The offender asked him about the fight and told him there were other ways to express your anger and told the boy to stand up. The boy did so and put his hand out expecting to be caned. The offender took his hand and sat the boy down in his lap. The offender was moving from side to side and cuddling him. The offender put his face into the boy’s neck; he caressed the boy’s hair. The boy tried to get away but the offender held him firmly. The offender then started touching the boy on the groin, on the outside of the boy’s clothing. The boy could feel the offender’s erect penis as he was still sitting on the offender’s lap. The offender took hold of the boy’s hands and used them to touch the offender’s erect penis, on the outside of his clothes. After some time the offender let the boy leave. He did not cane him.

Plea Count 18

Towards the end of 1978, the complainant, together with SMW and AC were sent to the offender for skipping school. AC was sent in first. When he came out he was red in the face and had marks on his fingers. SW was called in and remained with the offender for about 5 minutes. When he came out of the office he was “as white as a ghost”. The victim then went in to the office. The offender asked him why he had missed school. He said “Either come sit on my lap and we’ll talk about it or I’ll cane you.” The boy put his hand out to receive the cane. The offender grabbed his hand and pulled the boy onto his lap. He then cuddled the boy and kissed him on the neck. The boy tried to move away but was unsuccessful. The offender said “Let’s just talk”. The offender then touched the boy on the genitals with his hand on the outside of the boy’s clothing. The boy tried to push him away but the offender overpowered him. The offender then took the boy’s hand and put them onto the offender’s penis. The offender’s penis was erect. The offender was trying to kiss the boy again. The offender continued to say “It’s OK, It’s OK it’ll be alright.” The offender let him go and said “Six of the best for you, W-” He then caned him. Before the boy left the offender said “It’s OK, no one will know, it’ll be alright.” As the boy was leaving the offender touched him on the bottom. This occurred at least five or more times. The boy would get into trouble and be sent to the offender. The offender would then pull the boy onto his lap, cuddle him and touch the boy’s penis whilst making the boy touch his penis. He would then cane the boy six times and say “Six of the best for you W-… it’s OK, no one will know, it’ll be alright.” He would then squeeze and rub the boy on the bottom as he left. The abuse continued until the boy was expelled from school in Year 8.

Objective Seriousness and Sentence

Aggravating features: The ultimatum for sexual abuse to occur, the subsequent caning when the victim refused his advances. This behaviour would have placed the child in fear of further such contact and increases the seriousness of the offending generally. Not an isolated incident.

Sentence 1 year 4 months NPP 10 months.

Victim: OD

Plea Count 19: s.81 indecent assault male (fondle genitals over underpants)

OD was born on 17 April 1964. He is the youngest of 8 children. His parents were devout Catholics and they attended church every Sunday. In 1976 he started Year 7 at St Pius aged 11. In 1977 he started Year 8. The offender was his religious teacher.

Plea Count 19

During the summer of 1978 he was turning 13 or 14, the offender caught them smoking cigarettes. When they returned to school, the offender called them to see him. The other boy was called into the office first. About 5 minutes later he emerged, seeming upset. The offender then called the boy into the office. The offender said “You know you’re not meant to be smoking. I could send you to the principal.” The boy denied he had been smoking. The offender caned him twice on each hand. He then walked behind the boy and said “I thought I told you to tuck your shirt in.” The offender then grabbed the boy by the pants and started to tuck his shirt into his pants. The offender used two hands and as he was doing so he grabbed the boy on the penis and scrotum, from the outside of the boy’s underpants. The boy grabbed his hands and pushed them off his genitals and out of his pants. The boy grabbed for the door and opened it. As he was walking out there was a thump on the back of his head. The boy continued and left. He collected his school bag and went home.

Objective Seriousness and Sentence

Although this offence was individually opportunistic, the position of the offender at the school and his abuse of his position as disciplinarian increases the seriousness. The abuse was combined with gratuitous physical assault.

Sentence 11 months. NPP 8 months.

Victim: ST

Plea Count 20: s.81 indecent assault male (fondle genitals inside underwear)

The victim ST was born on 20 March 1965. His mother was a very strict Catholic. In 1978 he started at St Pius in Year 7. On the first day of school the boy was caned by the offender for throwing a paper plane. The offender was his form teacher or year advisor. On that occasion he received about six strikes of the cane on his hand. After caning the boy the offender sat in a chair. The offender then started talking to the boy. The offender then grabbed the boy by the hips and pulled the boy in towards him so that the boy was standing between the legs of the offender pressing up against his groin. The offender’s hands were still on the boy’s hips, with his fingers on the boy’s bottom. The offender talked to him for a while and had a smirk on his face.

Plea Count 20

A few days later the boy again was caned by the offender. After this, the offender grabbed the boy by the hips and pulled him so he was between the offender’s legs. The offender was seated, his hands were touching his bottom as he was talking to the boy. The offender then sat the boy on his lap. The offender had one hand rubbing the boy’s back, the fingers of that hand were going down the back of the boy’s pants and rubbing down the crack of the boy’s bottom. The offender’s other hand was on the boy’s leg rubbing up and down so that the offender’s thumb was touching the boy’s penis. The offender then moved that hand into the boy’s pants and fondled the boy on the penis, outside the boy’s underpants. After a time the boy was allowed to leave. The offender did this on a very regular basis. When the boy got the cane, which was about three times per week, the offender would fondle the boy’s bottom and penis. As the boy got older he would tell the offender to “fuck off”. Then the incidents started to diminish. In 1978 he told his mother about what the offender had done. She fobbed the boy off, calling him a “bad boy”.

Objective Seriousness and Sentence

Aggravating features: There was the usual grooming and planning behaviour, combined with caning the child to increase his fear of the offender. Limited physical contact outside of clothing, but of not short duration. Not an isolated incident. Harm caused to victim

Sentence; 1 year 10 months; NPP 1 year 1 month

Victim: PM

Plea Count 21: s.81 indecent assault male (forced fellatio on offender)

Plea Count 22: s.79 buggery (penile penetration of anus)

Form 1: s.81 indecent assault male (fondles penis inside underwear)

The complainant PM was born on 2 November 1965. When he was 7 years old his father died. His mother remarried, but 6 months’ later in 1974 she died. The boy remained with his stepfather until he died in 1975, when the boy was 9 or 10 years old. The boy was then placed in St Anne’s Home for Children in Liverpool until he was adopted by an older female cousin. He lived with his adoptive family at Whitebridge in Newcastle. They had five other children. They were very strict Catholics and it was a strict household. In 1978 he started in year 7 at St Pius X. The offender was his religious instructor, this was taught every day. The victim recalls one particular boy being picked on by other boys and always having to see the offender after class.

Form 1 matter (attached to Plea Count 21)

The victim was a good artist and used to draw in his school books. The offender approached him one day in the corridor and asked to see his drawings. The offender then took the boy to a small room. He sat and lifted the boy onto his lap. The offender then looked at the boy’s book and whilst doing so the offender fondled the boy’s penis initially on the outside of the clothing but then on the inside of the boys clothing. This continued for about ten minutes until the boy was able to leave. The offender said to him “I’m going to see you later.” The boy did not tell anyone as he was too scared to tell the principal as he thought he would get caned. He did not want to get picked on by his classmates like that other particular boy did. On another occasion when the victim was in Year 7, he was in the same room with the offender. The offender was fondling the boy’s penis. The boy started to get an erection and the offender then grabbed the boy’s hand and placed it on the offender’s penis and made the boy fondle it. The offender’s penis became erect. This continued for about 3 minutes. The offender said “Don’t say anything to anybody or I will cane you or I’ll tell your parents what you have been doing.” The boy was too afraid to tell anyone.

Comment:

This behaviour as context information represents the grooming of an extremely vulnerable child.

Plea Count 21

In 1979 when the boy was in Year 8 he was again called into the room of the offender on the guise of having his books inspected. The offender again fondled the boy’s penis and made the boy fondle his. The offender then pushed the boy’s head down and inserted his penis into the boy’s mouth. He moved the boy’s head up and down on his penis. He told the boy if he did not do so he would be punished. He said “If you ever say anything to anyone I will throttle you, don’t you dare.” The boy replied “No sir, no I won’t”. Whilst in Year 8, 1979, the boy complained to his adoptive mother. She said “Sorry my son by there is nothing I can do about this.” She did however make a complaint to the school.

Objective Seriousness and Sentence

The planning and grooming is indicative of a high degree of planning. The abuse was far from isolated. The child was already vulnerable. Harm caused to this complainant is an aggravating feature. Victim impact statement from this complainant sets of the long term consequences. Forced fellatio is a serious from of indecent assault. Threats not to tell. Highest category of offending.

Sentence: 4 years 6 months NPP 2 years 11 months

Plea Count 22

In 1980 when the boy was in Year 9 aged 14 or 15 years, he was dragged from the playground by the offender for misbehaving. He was taken to the offender’s office and given the cane. The offender then got the boy to sit down and talked to him about his behaviour. The offender then put his hands down the boy’s pants and fondled his penis. The offender then pulled the boys pants and his own pants down. The offender then bent the boy over the desk and inserted his penis into the boy’s anus. The boy was crying “No please don’t!” The offender ignored the boy’s plea and continued. The boy felt incredible pain. Eventually the offender stopped and then yelled at the boy to get back to class. The boy complained to his adoptive brother when he got home. The brother counselled him and told him to tell their father. The boy did so and his adoptive father hit the boy for lying. His adoptive mother comforted the boy but told him she could not go against his adoptive father. She did however return to school to complain. From then on the boy tried to avoid the offender. He finished school in 1981.

Objective Seriousness and Sentence

Aggravating features: Planned forced intercourse, causing pain. Combination of sexual abuse and physical abuse. Immediate physical and emotional toll on child. Immediate physical pain. Child’s pleas to stop ignored. Not isolated incident of abuse. Long-term consequences for victim. This offence falls within the high-range of objective seriousness.

Sentence 12 years 7 months NPP 8 years 2 months.

Victim: PC

Plea Count 23: s.81 indecent assault male (fondle genitals outside clothing)

The victim PC was born on 25 April 1967. He was taken to church by his father most weekends. In 1979 he started at St Pius X in Year 7. One afternoon in about June or July of 1979 the boy and his friend missed the school bus. They then walked back into the school grounds. There they met the offender. The offender told the boys to follow him. They did so. They were lead to an office in the school building. Once inside the office the offender grabbed the victim’s friend in the groin area and fondled him.

Plea Count 23

The victim went to leave but the offender grabbed him by the ear. The offender then touched the boy’s genitals on the outside of his clothing. The offender then alternated between touching the victim and his friend on their genitals. The offender then took the victim’s hand and placed it on the offender’s penis, making the boy fondle him. When the offender let go of the victim’s hand and turned his attention towards the other boy, the victim again tried to leave. The offender said, “Wait, I’m going to have to speak to your parents.” The offender let go of the other boy, who then kicked the offender. The offender became very angry and grabbed both boys by the arm and squeezed them hard. He said “Don’t tell anyone, no one will believe you, if you have to tell anyone tell God.” The boys were then allowed to leave. The victim did not tell anyone of this incident, and after it he avoided the offender. In September or October of 1979 the boy complained to the principal Father Brennan. The boy left St Pius at the end of 1979.

Objective Seriousness and Sentence

Aggravating features. Presence of both children together. Threat to tell parents. Threats not to tell. Moderate planning.

Sentence 11 months NPP 8 months.

Victim: PB

Plea Count 24: s.81 indecent assault male (fondle penis over underpants)

PB was born on 29 May 1966. He was from a very religious family who attended church every week. In 1978 he started Year 7 at St Pius X, aged 11. In 1979 when the boy was in Year 8 the offender was his religious teacher.

Plea Count 24

Whilst the offender was his religious teacher in year 8 (1979) on one occasion he did not take the class. The class was taken by Father Brennan. During the class Father Brennan called the names of boys and sent them to go and see the offender. The boy’s name was called out and he was sent to see the offender in another room. The offender was sitting behind a desk. The offender said “Come around here, I need to talk to you about this.” The boy walked around to the offender. The offender then put his hand around the back of the boy and pulled him closer. The offender held him there in a tight grip. He moved his hand into the boy’s pocket and fondled the boy’s penis. The offender squeezed his penis causing pain. The offender was talking about the boy’s school report. The boy said “I don’t like that.” And pulled away from the offender. The offender tried to hold the boy and in doing so pushed the boy’s penis back against the boy’s body. The offender’s hand came out of the boy’s pocket but the offender was still holding the boy. The offender said “Come back here. I need to talk to you about this.” The offender pulled the boy back and again put his hand in the boy’s pocket and started fondling his penis again. The boy struggled again and was eventually able to get away from the offender. The offender then sent the boy back to class and asked him to tell Father Brennan to send the next boy. The boy felt confused and embarrassed by what the offender had done. He became scared of others finding out and teasing him for being a “poof”.

Objective Seriousness and Sentence

Aggravating features: Collusion/ planning with Brennan. The offence gives some insight into what may have been planned and organised behaviour on the part of certain teachers at the school. It is highly unlikely in the circumstances agreed to in this offence that the two were not acting in concert.

Sentence: 1 year 4 month NPP 10 months

Victim RM Plea Count 25: s.81 indecent assault male (penetration of anus with cane) Form 1 matter: s.81 indecent assault male (fondle penis over underpants)

RM was born on 31 March 1967. His father was a Catholic. In 1979 he started Year 7 at St Pius. He recalls it as a brutal and sadistic school. The offender was his Year Master in 1979. He would joke with the students in the playground and cuddle them. He would come into class and see how the students were going.

Form 1 matter (attached to Plea Count 25)

One lunchtime, a few months into Year 7, the boy went to the tuck shop to buy a drink. The offender stood behind him in the line and said “You look hot. Would you like an ice block?” The boy said “yes”. The offender then pushed himself against the back of the boy so that the offender’s genitals were pushing against the middle of the boy’s back. The offender then placed his hands around the boy and into the boy’s pockets. The offender dropped change into each pocket and at the same time pulled the boy towards him. He then started rubbing the boy on the penis and scrotum for about 5 seconds. The offender then walked away.

Plea Count 25

In Year 7 towards September or October, the boy was standing outside a class room, having been sent from the room, when the offender approached him and asked him what he was doing. The boy explained and the offender said “You’d better come with me”. The offender took the boy to Father Brennan’s office. Father Brennan was not there. The offender shut the door. The offender told the boy to come and stand next to him. The offender put his arm around the shoulders of the boy and said “You can’t be getting sent out of class. You’ll be punished.” The offender moved the boy in front of him so that the boy’s back was to the offender. The boy was facing the desk. The offender undid the boy’s belt and pulled down his pants and underpants. The offender grabbed the boy by the back of the neck and pushed his face down onto the desk. He then pulled out the cane and moved to the left side of the boy. He swished the cane twice but did not hit the boy. He then said “This is for being sent out of class.” The offender then inserted the cane into the boy’s anus. The boy felt extreme pain and screamed. The offender pushed the cane in and out four times. The boy screamed the whole time. He was struggling but the offender held him down. After he had moved it in and out four times the offender pulled the cane out and then caned the boy four times on the backside. The boy continued to scream and sob. The boy pulled his pants up and the offender told the boy to stand on the other side of the desk and hold out his hand. He then caned the boy twice on each hand saying “This is for being a cry baby.” He then told the boy to go back to class. The boy went to the toilets until he stopped crying. He then went back to class.

Other acts

The offender coming up behind the boy and rubbing his genitals on the boys back and then putting his hands in the boys pockets and rubbing his penis and scrotum happened about twenty times throughout Year 7.

Objective Seriousness and Sentence

Aggravating features: Grooming by the offender. Planning. Public nature of earlier Form 1 matters. Penetration of an anus with a cane, many times, combined with corporal punishment that bring the case into the gravest of cases. The fact that it happened in Father Brennan’s (the Principal) office lends support to the notion that there was an organised undercurrent at this school, where sexualised behaviour was, at the very least sanctioned, and more than likely planned.

Sentence 4 years 6 months NPP 2 years 11 months

General Sentence Considerations: Aggregate Sentence, Special Circumstances.

As already observed these offences against 18 children represent a serious form of this type of offending. The delay in charging is significant, but “Old Sins Cast Long Shadows.”41
S 3 A of the Crimes Sentencing and Procedure Act requires the court to consider often competing aims of a sentence. Punishment which adequately denounces the criminal conduct and recognises the harm done to the victims and the community is called for, within the limitations imposed by the maximum penalties in existence at the time. Specific deterrence is addressed by virtue of the length of the sentence. A requirement to consider a plan for rehabilitation is somewhat overshadowed by other considerations and practicalities.
Generally, when considering partially accumulating a sentence on an existing sentence, courts are required to set a non-parole period in accordance with s 44 which reflects a ratio for the whole sentence, rather than just the additional term imposed. In considering the total non-parole period it is also necessary to ensure that the aggregation of all of the sentences is a “just and appropriate measure of the total criminality involved”. This approach has been confirmed in many cases. [41] This consideration must therefore apply to both the total term to be served and the proportions of that term is served in custody and in the community.
41. MSK [2006] NSWCCA 381.
When considering accumulation for multiple offences, Appeal Courts have urged sentencing Courts to “take care when accumulating sentences where there are multiple victims to guard against the view that, in reality, there is virtually no penalty imposed at all” [42] .
42. R v Gommesson [15/8/2014 NSWCCA ](Para 114). In that case, where the offences occurred at very recent times, 7 children were offended against and 20 charges pleaded to. To quote a Danish proverb, old sins cast long shadows
I propose to commence the sentence imposed today from today. That will represent an accumulation of 6 years 5 months and 9 days. This is an appropriate period of accumulation, representing almost half of the current non-parole period.
It was submitted that due to the offender’s advanced age, special circumstances ought be found to reduce the non-parole period proportion of the total term. I have already referred to his age as it is relevant to the imposition of a sentence which he may or may not survive [43] , but this is a slightly different consideration as it affects the length of time to be served in a custodial setting and the proportion of a total sentence to be served under supervision in the community. There is evidence of an inverse ratio that exists between his age and risk of re-offending, even if a finding of rehabilitation is not otherwise made. Dr Nielsen made available to the court [44] the Static –99R coding form which is simply a list of fixed risk factors for which scores are allocated to arrive at a total risk of re-offending score, which is then translated to low, medium or high category label. This offender’s total score is 3, which translates to the low-moderate range of risk categories. The risk score is reduced as a result of his age, and increased due to the number of male, unrelated victims, and prior offences.
43. para 45 above
44. exhibit C
On the current sentence regime, he will be aged 79 years on his release. Notwithstanding that, there is a need to ensure that the sentence for these further offences, which represent only a slightly lesser number of complainants and similar types of offending result in a further substantial period of custody. To do otherwise would offend the principles referred to above. As a result, on his release, there will be little demonstrated need for him to be supervised by the authorities for the amount of time required under the s 44 ratio as it relates to the total of accumulated sentences. The period of supervision is already a very substantial one.
By the time his non-parole period expires he will be aged nearly 85 years. At that time his advanced age will lessen his risk of re-offending. Therefore although a substantial term ought be served in a custodial setting, for the reasons mentioned above, there are circumstances which will result in a finding of special circumstances but to increase the non parole to parole ratio on the sentence I impose today, so that an appropriate amount of time is served in a custodial setting, but proportionally less time under supervision in the community. It is a practical and realistic conclusion. The conditions of parole for such an extended term are that while he will be eligible for release at the stated time he must demonstrate that he no longer a threat to the community. Due to the length of the sentences, the parole period is substantial, even with this finding.
The offender, JOHN SIDNEY DENHAM, is sentenced to an aggregate term of imprisonment of 18 years, to commence on 23 January 2015 and expiring on 22 January 2033 with a non-parole period of 13 years. The offender is first eligible for parole on 22 January 2028. The relevant agency for the purposes of supervision is Probation and Parole Service.
The total of the accumulated 2010 and current sentence will result in the offender serving a period in custody of 19 years 5 months 9 days with a period of 5 years supervision on his release.

**********

Endnotes

40. Danish proverb Courtesy G L-Owen.

Decision last updated: 05 March 2015

Medium Neutral Citation:	R v Denham [2015] NSWDC 21
Hearing dates:	22 and 25 August 2014, 20 November 2014
Decision date:	23 January 2015
Jurisdiction:	Criminal
Before:	H. L. Syme DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment of 18 years, to commence on 23 January 2015 and expiring on 22 January 2033 with a non-parole period of 13 years.
Catchwords:	CRIMINAL LAW – Sentence – Historical Child Sex Offences – Multiple Offences – Catholic Priest – Aggravating Features - Planning – Possibility of Death in Custody
Legislation Cited:	Crimes Act 1900
Cases Cited:	R v PWH (unreported) CCA 20.2.92 R v DCM (unrep 26/10/93, NSWCCA)
Category:	Principal judgment
Parties:	The Crown John Sidney Denham
Representation:	Counsel: O’Brien (DPP) Averre (Offender)
File Number(s):	2011/00382572 and 2012/00211543
Publication restriction:	Non publication order relating to anything that identifies any complainants