THE KING v DAVID LUKE DENEHEY 9 OCTOBER 2024
COMMENTS ON PASSING SENTENCE MARSHALL AJ
Mr Denehey has pleaded guilty to the charge that he used a carriage service for child abuse material contrary to s 474.22(1) of the Criminal Code (Cth). Particulars of that charge are that between on or about 23 January 2023 and 25 April 2023, Mr Denehey accessed child abuse material using a carriage service. The offence was committed in South Hobart and elsewhere in Tasmania.
Pursuant to s 16BA of the Crimes Act 1914 (Cth), Mr Denehey has made an admission of guilt to a further charge. That charge arises under s 474.22A(1) of the Criminal Code. Particulars of that charge are that Mr Denehey in South Hobart on or about 26 April 2023 possessed or controlled child abuse material in the form of data held on a computer and a mobile phone. It is also alleged that Mr Denehey used a carriage service to obtain or access that material.
Pursuant to s 385A of the Criminal Code (Tas), Mr Denehey has pleaded guilty to a charge under s 33 of the Community Protection (Offender Reporting) Act 2005 (Tas). The particulars of that charge are that while being a reportable offender, subject to reporting obligations under that Act, Mr Denehey failed to report his WhatsApp username, his email address and his TikTok account.
In addition to facing sentencing for those offences Mr Denehey is the subject of an application by the prosecution to activate suspended sentences.
On 6 October 2020, in this Court, Mr Denehey was sentenced by Geason J to a term of 12 months imprisonment with seven months suspended on the condition that he commit no offence punishable by imprisonment for a period of three years. On the same date, he was sentenced by his Honour to a term of three months, wholly suspended on the condition that he commit no offence punishable by imprisonment for a period of three years. Geason J ordered that these sentences be served concurrently. It was also ordered that his name be placed on the Register pursuant to the Community Protection (Offender Reporting) Act 2005 and to comply with obligations under that Act.
Counsel for Mr Denehey did not oppose the King’s application to ‘breach’ the two suspended sentences. Mr Denehey’s prior offending which led to the suspended sentence occurred in June 2019. It also concerned the possession of child exploitation material.
At the time of Mr Denehey’s arrest on 26 April 2023, he was found by police to have an undeclared email account not known to the Registrar as well as a WhatsApp account and a TikTok account contrary to his reporting obligations.
At the time of his arrest, Mr Denehey admitted to possession of photographs of underage girls. He accessed that material from a group chat using a name which is a common term used for child abuse material, according to counsel for The King.
Mr Denehey said that he did not realise that he had to report his undeclared email address as he rarely used it. He also claimed he did not know he had to declare his WhatsApp and TikTok accounts.
Mr Denehey has been in custody since his arrest on 26 April 2023. Therefore, any sentence the Court imposes today will need to be backdated to 26 April 2023.
Under s 16AAB of the Crimes Act, Mr Denehey faces a mandatory minimum head sentence of four years imprisonment given his previous conviction for a child sexual abuse offence. The minimum four-year term is the commencement of the yardstick against which the offending can be assessed. It is the starting point for the appropriate term of imprisonment for the offence in the least serious circumstances. That is, offending at the lowest scale of the circumstances relevant to the offence.
However, under s 16AAC(2) and (3) of the Crimes Act, a court is permitted to impose a sentence of less than the statutory mandatory minimum where it considers that adequate recognition for the guilty plea or cooperation with the police cannot be given without going below the minimum period. These subsections provide for a 25% reduction to accommodate any guilty plea and a 25% reduction to accommodate any recognition of cooperation with the police.
The Court is required to first determine the sentence which is appropriate with the use of the prescribed minimum as a yardstick before consideration of the discounts.
The first task is to engage in an instinctive synthesis of all relevant facts except for the consideration of the guilty plea and cooperation with law enforcement. Only then can the Court determine if it considers it appropriate to move lower than the four-year statutory minimum having regard to the pleas and the cooperation with law enforcement.
Ordinarily a reduction of sentence using s 16AAC (2) and (3) of the Crimes Act will occur where the appropriate sentence otherwise involves facts and circumstances which place the offending at the lower range of offending.
The first charge on the indictment is an extremely serious one. In sentencing Mr Denehey for this offence, the primary consideration is general deterrence. Also involved in that consideration is the vital importance of the public interest in protecting children.
Specific deterrence, although not looming as large as general deterrence, is important in the current matter because Mr Denehey has a relevant prior conviction for similar offending.
Denunciation of the offending is also a relevant consideration.
Under s 16A(2AAA) the Court is required to have regard to the objective of rehabilitation of the offender. The Court must have regard to whether it is appropriate to impose rehabilitation and treatment options and take them into account in determining the length of any sentence or the length of any non-parole period allowing sufficient time for the offender to undertake a rehabilitation program. Rehabilitation considerations, although important, should not lessen the significance of general deterrence including the protection of children.
Aggravating factors in this matter include the fact that this offending occurred when Mr Denehey was subject to a suspended sentences for a similar charge and also subject to reporting obligations.
The child abuse material subject of count 1 was highly depraved. The child abuse material included videos of pre-pubescent females engaging in sexual intercourse with both pre-pubescent males and adult males. The offending was not isolated, it occurred over an approximate three-month period. The guilty plea was not made at the earliest opportunity. Mr Denehey is in his late 30’s and is not a youthful offender. The last two matters while not aggravating matters are examples of factors which might otherwise usually be called in aid in mitigation of sentence but are not available to the offender in the circumstances of this case.
In mitigation of sentence, counsel for Mr Denehey referred to the fact that his client had suffered from a major depressive disorder and was not taking his tablets at the time of the offending to which he has pleaded guilty. Counsel also raised the issue of drug use at the time by Mr Denehey. So much may be so but not everyone who suffers from depression or engages in drug use commits the offences of the sort that are currently before the Court. While being in a depressive state and being affected by the use of illicit drugs does not excuse the behaviour it does at least assist to explain it.
Counsel relied on a report from a psychologist regarding Mr Denehey’s behaviour. That report so far as the material makes the following points:
- Mr Denehey has a tendency to minimise his offending.
- Mr Denehey does not now suffer from a psychotic mood or major anxiety disorder and those forms of mental illness have no bearing on his offending.
- Mr Denehey has long standing cannabis dependency and other substance abuse issues.
- Mr Denehey’s offending most likely relates to a deviant pattern of sexual arousal.
- He presents an ongoing risk of similar offending without intervention or rehabilitation. It is strongly recommended that arrangements be made for him to engage meaningfully and participate in a sex offender treatment program.
In mitigation of sentence counsel for Mr Denehey also referred to the fact that his client did not create or distribute the child abuse images. He obtained them from a private WhatsApp group and downloaded them to his own devices.
The Court is required to impose a sentence which reflects the overall criminality of the offending. It also requires a final step to be undertaken in the nature of a check and for moderation to be applied after reaching a conclusion as to what is the appropriate sentence. In that way a sentence can be arrived at which is just and proportionate to the totality of the offending. I note that the Commonwealth and the State offending must be sentenced separately.
Taking all relevant matters into account, including all aggravating and mitigating considerations referred to above, and focusing on the objective seriousness of the offending under the Criminal Code (Cth), the Court imposes a sentence which reflects its view that the offending is not at the lower range of offending for that offence. Consequently, there can be no discounts applied to the sentence for the guilty plea or cooperation with law enforcement.
The offending was midrange for the offences under the Criminal Code (Cth). The lack of involvement of Mr Denehey in the distribution or the making of the child abuse material prevents the offending from being high range.
In all the circumstances, Mr Denehey is sentenced to a term of imprisonment of six years with a non-parole period of three years on the Commonwealth offending. On the State offending, a sentence of one month is imposed but is made wholly concurrent with the sentence on the Commonwealth offending. Both sentences are backdated to 26 April 2023, being the date on which Mr Denehey was brought into custody. I record a conviction for all offences.
I activate the suspended sentences of 7 months and 3 months, imposed on 6 October 2020 by Geason J. Those sentences will commence on 26 April 2023 and are to be served concurrently with each other and the sentences imposed for the Commonwealth and State offending.
I recommend that upon release, Mr Denehey is to engage with rehabilitation and treatment options relevant to the conduct which constituted the major offending under the Criminal Code.
I further order that Mr Denehey’s name be placed on the register pursuant to the Community (Protection Offender) Reporting Act 2005 and that he must comply with the obligations under that Act and that his name stay on the register for a period of ten years.