Denham v R [2016] NSWCCA 309

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Denham v R [2016] NSWCCA 309 Hearing dates: 10 October 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Before: Payne JA; Fagan J; N Adams J Decision: (1) Extend the time for the filing of the notice of appeal and application for leave to appeal to 24 May 2016.

(2) Leave to appeal granted.

(3) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal – sentence – large number of child sexual assault offences committed between 1968 and 1986 – historical sentencing – during period of offending non-parole periods typically comprised 35-50% of head sentence – whether primary judge erred in failing to properly apply sentencing principles and practices existing at the time of the offending

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

CRIMINAL LAW – appeal – sentence – whether primary judge erred in finding that offences were aggravated by being part of planned or organised criminal activity – whether primary judge made a finding under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether evidence that degree of planning exceeded degree of planning which would ordinarily be expected

CRIMINAL LAW – appeal – sentence – whether sentence unreasonable or plainly unjust Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 44, 53A Crimes Act 1900 (NSW) ss 61E, 79, 81 Criminal Appeal Act 1912 (NSW) s 5 Parole of Prisoners (Amendment) Act 1970 (NSW) Parole of Prisoners Act 1966 (NSW) s 4 Probation and Parole Act 1983 (NSW) Probation and Parole Regulation 1984 (NSW) Sentencing Act 1989 (NSW) Cases Cited: Abdulrahman v R [2016] NSWCCA 192 AJB v R [2007] NSWCCA 51 Bradbery v R [2008] NSWCCA 93 CPW v R [2009] NSWCCA 105 Flaherty v R; R v Flaherty [2016] NSWCCA 188 Henderson v R [2016] NSWCCA 8 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Knight v R [2010] NSWCCA 51 Lehn v R [2016] NSWCCA 255 Magnuson v R [2013] NSWCCA 50 McIntosh v R [2015] NSWCCA 184 Moore v R [2016] NSWCCA 185 MPB v R [2013] NSWCCA 213 Pearce v The Queen (1998) 194 CLR 610 Power v The Queen (1974) 131 CLR 623 R v AB (No. 2) (2000) 117 A Crim R 473; [2000] NSWCCA 467 R v Clarke and Cathro (NSW Court of Criminal Appeal, 7 February 1975, Street CJ, McClemmens CJ at CL, Isaacs J, unrep.) R v Hill (NSW Court of Criminal Appeal, 11 July 1979, Street CJ, Moffitt P, Nagle CJ at CL, unrep.) R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v Moon [2000] NSWCCA 534 R v Perrot (NSW Court of Criminal Appeal, 15 February 1980, Street CJ, Nagle CJ at CL, Lee J, unrep.) R v PWH (NSW Court of Criminal Appeal, 20 February 1992, unrep.) R v Roberts [2003] NSWCCA 309 R v Ryan (No 2) [2003] NSWCCA 35 Rosenstrauss v R [2012] NSWCCA 25 Category: Principal judgment Parties: John Sidney Denham (applicant) Regina (respondent) Representation: Counsel: J Watts (applicant) V Lydiard (respondent)