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R v Doherty, Carl William

R v Doherty, Carl William

Case [2018] NSWDC 120 11 May 2018

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DOHERTY, Carl William [2018] NSWDC 120
Hearing dates: 12 March, 2018
Date of orders: 11 May 2018
Decision date: 11 May 2018
Jurisdiction: Criminal
Before: His Honour Judge Lerve
Decision:
Aggregate sentence

Catchwords: Sentence – multiple offending – multiple victims – historical offending – determining sentencing trends and practices at the time of the offending - assistance
Legislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Sentencing Act, 1989
Cases Cited: AJB v R [2007] NSWCCA 51
PWB v R [2011] NSWCCA 84
MC v R [2017] NSWCCA 316
Cahyadi v R [2007] NSWCCA 1
R v AD [2008] NSWCCA 289
Denham v R [2016] NSWCCA 309
R v Donald [2013] NSWCCA 238
Hermann v R (1988) 37 A Crim R 440
R v Holder [1983] 3 NSWLR 245
Holyoak v The Queen (1995) 82 A Crim R 502
Humphries [2004] NSWCCA 370
Khanwaiz [2012] NSWCCA 168
R v Madeley [2018] NSWDC 35
Magnuson v R [2013] NSWCCA 50
R v Moon [2000] NSWCCA 534
R v Muldoon unrep. NSWCCA 13.12.1990.
R v TWP [2006] NSWCCA 141
Ryan v The Queen (2001) 206 CLR 267
R v Sukkar [2006] NSWCCA 92
Todd v R [1982] 2 NSWLR 517
Tuala [2015] NSWCCA 8
R v Van Ryn [2016] NSWCCA 1
SZ v The Queen [2007] NSWCCA 19
Category: Sentence
Parties: Director of Public Prosecutions
Carl William Doherty
Representation:
Counsel:
Ms C Mendes
Solicitors:
Crown – Ms L Hanshaw
Offender - Mr J Weir

File Number(s): 2016/274832
Publication restriction: I direct that there be no publication of the names of the victims or anything that might tend to identify them. This extends to the whereabouts of the victims and their occupations.

SENTENCE

I DIRECT THAT THERE BE NO PUBLICATION OF THE NAMES OF THE VICTIMS OR ANYTHING THAT MIGHT TEND TO IDENTIFY THEM. THIS EXTENDS TO THE WHEREABOUTS OF THE VICTIMS AND THEIR OCCUPATIONS.
Carl William Doherty appears for sentence in respect of 22 counts of sexual offending against seven different victims, all of whom were students at the Junee High School where the offender was a teacher. The offending for which the offender appears for sentence occurred between April 1965 and May 1981. However, as will become apparent later in these remarks, there were significant breaks in the offending.
The offender was committed for sentence in respect of seven counts of Buggery contrary to s 79 of the Crimes Act, 1900, one count of Attempted Buggery contrary to s 80 of the Crimes Act and fourteen counts of Indecent Assault Male contrary to s 81 of the Crimes Act, as it then was. The pleas of guilty were entered at an early stage, and accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. In respect of the victim MJH there is another factor that entitles the offender to a further numerical discount, details of which will become…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Doherty, Carl William

Details

AGLC: R v Doherty, Carl William [2018] NSWDC 120
Case: [2018] NSWDC 120
Decision Date: 11 May 2018

CaseChat Overview and Summary

The case of R v Doherty, Carl William involved a defendant who had committed multiple historical offences against multiple victims. The defendant was brought before the court to determine an appropriate aggregate sentence for his criminal conduct. The court was tasked with considering the gravity of the offences, the impact on the victims, and the sentencing trends and practices that were applicable at the time the offences were committed.

The primary legal issue before the court was to determine an appropriate aggregate sentence for the defendant's multiple historical offences, taking into account the severity of the crimes, the harm caused to the victims, and the sentencing practices in place during the time the offences occurred. The court also had to consider the defendant's background and any factors that might warrant a departure from the standard sentencing guidelines.

The court began by examining the nature and severity of the offences committed by the defendant, which included sexual assault and other serious criminal acts against multiple victims. The court also considered the harm and trauma experienced by the victims as a result of the defendant's actions. In determining the appropriate aggregate sentence, the court took into account the sentencing trends and practices that were applicable at the time the offences were committed, as well as any changes in the law or societal attitudes since that time. The court also considered any mitigating or aggravating factors present in the defendant's background and circumstances.

Following its analysis, the court determined that an aggregate sentence was the most appropriate outcome for the defendant's multiple historical offences, taking into account the severity of the crimes, the harm caused to the victims, and the relevant sentencing trends and practices at the time of the offending. The court then proceeded to impose an aggregate sentence for the defendant's criminal conduct, reflecting the gravity of his actions and the need to provide justice for the victims.

Orders

Orders of the court

Aggregate sentence

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Doherty, Carl William [2018] NSWDC 120

Cases Citing This Decision

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Cases Cited

R v Holder [2019] SASCFC 73
Citation 1 (Para 102)

…It seems to me, with unfeigned respect, that this is no different in practical terms to what was said by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260, namely,…
R v Victor Madeley [2018] NSWDC 35
Citation 2 (Para 88)

…ral Deterrence and Old Offending and Sentencing Practices at the time is essentially a repeat of what I said in my Remarks on Sentence in R v Madeley [2018] NSWDC 35 That matter was very similar in a number of respects to the matter under consideration, including that the offender was now 82, there were 7 victims…
MC v R [2017] NSWCCA 316
Citation 3 (Para 95)

…Judicial memory is no longer considered a reliable factor in determining the sentencing trends at the time – see MC v R [2017] NSWCCA 316.…
Denham v R [2016] NSWCCA 309
Citation 4 (Para 93)

…the time of the offending. These include R v Moon [2000] NSWCCA 534, AJB v R [2007] NSWCCA 51, PWB v R [2011] NSWCCA 84 and more recently Denham v R [2016] NSWCCA 309. I note the very helpful table annexed to the judgment of RS Hulme J in PWB v R .…
R v Van Ryn [2016] NSWCCA 1
Citation 5 (Para 90)

…the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 179 where his Honour said:…
EG v R [2015] NSWCCA 21
Citation 6 (Para 42)

…“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:…
R v Tuala [2015] NSWCCA 8
Citation 7 (Para 106)

…ictim impact statements, the law is quite clear. In the absence of any other material and given the decision of the Court of Criminal Appeal in Tuala [2015] NSWCCA 8 I cannot find beyond reasonable doubt for the purpose of sentence that any of the victims has suffered substantial emotional harm within the meaning…
R v Donald [2013] NSWCCA 238
Citation 8 (Para 136)

…Latham J (Hidden & Adamson JJ agreeing) reviewed a number of authorities relating to the issue of delay in R v Donald [2013] NSWCCA 238 at [28]-[57]. Her Honour at [49] said:…
Magnuson v R [2013] NSWCCA 50
Citation 9 (Para 94)

…Ms Mendes in her very helpful and comprehensive submissions (MFI 2 on sentence) refers to the decision of Magnuson v R [2013] NSWCCA 50. Button J (McCllellan CJ at CL, Bellew J agreeing) said at [82]-[90]:…
RLS v R [2012] NSWCCA 236
Citation 10

…ic, even if it is determined that the sentencing judge failed to advert to the principle: see, for example, Mottram v R [2009] NSWCCA 210 and RLS v R [2012] NSWCCA 236.…
Khanwaiz v R [2012] NSWCCA 168
Citation 11 (Para 19)

…opose to deal with the matter on the basis of the agreed facts, namely that the victim was approximately 16 years of age. In this regard see Khanwaiz [2012] NSWCCA 168 at [96] per Beech-Jones J.…
Rosenstrauss v R [2012] NSWCCA 25
Citation 12 (Para 36)

…tencing judges should sentence in accordance with that fact: see AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 at [36] - [37] and Rosenstrauss v R [2012] NSWCCA 25 at [16].…
PWB v R [2011] NSWCCA 84
Citation 13 (Para 93)

…ce with the sentencing practices and trends at the time of the offending. These include R v Moon [2000] NSWCCA 534, AJB v R [2007] NSWCCA 51, PWB v R [2011] NSWCCA 84 and more recently Denham v R [2016] NSWCCA 309. I note the very helpful table annexed to the judgment of RS Hulme J in PWB v R .…
R v MJR [2010] NSWSC 653
Citation 14

…ealing with very old offences must take into account the sentencing patterns that existed at the time of the offences: see R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481.…
Mottram v R [2009] NSWCCA 210
Citation 15

…reduction has not been automatic, even if it is determined that the sentencing judge failed to advert to the principle: see, for example, Mottram v R [2009] NSWCCA 210 and RLS v R [2012] NSWCCA 236.…
R v AD [2008] NSWCCA 289
Citation 16 (Para 110)

…past assistance. Since the sentence hearing I have reviewed the decisions of R v Sukkar [2006] NSWCCA 92 , SZ v The Queen [2007] NSWCCA 19 and R v AD [2008] NSWCCA 289 I am of the opinion that the combined discount to the offender for the plea of guilty and assistance should be as I have indicated, ie 35%.…
RWB v R [2008] NSWCCA 93
Citation 17

…y to reflect the principle and the relevant sentencing pattern may cause the sentence to be manifestly excessive, or otherwise erroneous: see RWB v R [2008] NSWCCA 93; (2008) 184 A Crim R 453 at [24] - [26].…
AJB v R [2007] NSWCCA 51
Citation 18 (Para 93)

…g the offender in accordance with the sentencing practices and trends at the time of the offending. These include R v Moon [2000] NSWCCA 534, AJB v R [2007] NSWCCA 51, PWB v R [2011] NSWCCA 84 and more recently Denham v R [2016] NSWCCA 309. I note the very helpful table annexed to the judgment of RS Hulme J in PWB…
SZ v R [2007] NSWCCA 19
Citation 19 (Para 110)

…plea and a further 10% for past assistance. Since the sentence hearing I have reviewed the decisions of R v Sukkar [2006] NSWCCA 92 , SZ v The Queen [2007] NSWCCA 19 and R v AD [2008] NSWCCA 289 I am of the opinion that the combined discount to the offender for the plea of guilty and assistance should be as I have…
Cahyadi v R [2007] NSWCCA 1
Citation 20 (Para 101)

…On this issue of accumulation and concurrency of sentences Howie J in Cahyadi v R , (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] said:…
R v TWP [2006] NSWCCA 141
Citation 21 (Para 84)

…ubmissions on the issue of the prior good character. The Crown refers to a number of decisions including Ryan v The Queen (2001) 206 CLR 267, R v TWP [2006] NSWCCA 141 at [17] and Hermann v R (1988) 37 A Crim R 440.…
R v Sukkar [2006] NSWCCA 92
Citation 22 (Para 110)

…f 35% to the offender, 25% for the plea and a further 10% for past assistance. Since the sentence hearing I have reviewed the decisions of R v Sukkar [2006] NSWCCA 92 , SZ v The Queen [2007] NSWCCA 19 and R v AD [2008] NSWCCA 289 I am of the opinion that the combined discount to the offender for the plea of guilty…
R v Humphries [2004] NSWCCA 370
Citation 23 (Para 135)

…However, Barr J (Buddin & Campbell JJ agreeing) in Humphries [2004] NSWCCA 370 said at [19]-[20]:…
R v MJR [2002] NSWCCA 129
Citation 24

…sentencing judge dealing with very old offences must take into account the sentencing patterns that existed at the time of the offences: see R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481.…
Ryan v The Queen [2001] HCA 21
Citation 25

…eley [2018] NSWDC 35 Magnuson v R [2013] NSWCCA 50 R v Moon [2000] NSWCCA 534 R v Muldoon unrep. NSWCCA 13.12.1990. R v TWP [2006] NSWCCA 141 Ryan v The Queen (2001) 206 CLR 267 R v Sukkar [2006] NSWCCA 92 Todd v R [1982] 2 NSWLR 517 Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 SZ v The Queen [2007] NSWCCA 19 Categor…
R v Moon [2000] NSWCCA 534
Citation 26 (Para 93)

…s on the issue of sentencing the offender in accordance with the sentencing practices and trends at the time of the offending. These include R v Moon [2000] NSWCCA 534, AJB v R [2007] NSWCCA 51, PWB v R [2011] NSWCCA 84 and more recently Denham v R [2016] NSWCCA 309. I note the very helpful table annexed to the judg…
Veen v The Queen [1979] HCA 7
Citation 27

…e seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as v…
Power v The Queen [1974] HCA 26
Citation 28

…represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice: Power v The Queen (1974) 131 CLR 623, referred to in AJB v R and many subsequent cases dealing with the principle under discussion.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 106)

Medium Neutral Citation:	R v DOHERTY, Carl William [2018] NSWDC 120
Hearing dates:	12 March, 2018
Date of orders:	11 May 2018
Decision date:	11 May 2018
Jurisdiction:	Criminal
Before:	His Honour Judge Lerve
Decision:	Aggregate sentence
Catchwords:	Sentence – multiple offending – multiple victims – historical offending – determining sentencing trends and practices at the time of the offending - assistance
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Sentencing Act, 1989
Cases Cited:	AJB v R [2007] NSWCCA 51 PWB v R [2011] NSWCCA 84 MC v R [2017] NSWCCA 316 Cahyadi v R [2007] NSWCCA 1 R v AD [2008] NSWCCA 289 Denham v R [2016] NSWCCA 309 R v Donald [2013] NSWCCA 238 Hermann v R (1988) 37 A Crim R 440 R v Holder [1983] 3 NSWLR 245 Holyoak v The Queen (1995) 82 A Crim R 502 Humphries [2004] NSWCCA 370 Khanwaiz [2012] NSWCCA 168 R v Madeley [2018] NSWDC 35 Magnuson v R [2013] NSWCCA 50 R v Moon [2000] NSWCCA 534 R v Muldoon unrep. NSWCCA 13.12.1990. R v TWP [2006] NSWCCA 141 Ryan v The Queen (2001) 206 CLR 267 R v Sukkar [2006] NSWCCA 92 Todd v R [1982] 2 NSWLR 517 Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 SZ v The Queen [2007] NSWCCA 19
Category:	Sentence
Parties:	Director of Public Prosecutions Carl William Doherty
Representation:	Counsel: Ms C Mendes Solicitors: Crown – Ms L Hanshaw Offender - Mr J Weir
File Number(s):	2016/274832
Publication restriction:	I direct that there be no publication of the names of the victims or anything that might tend to identify them. This extends to the whereabouts of the victims and their occupations.