AA v R

[2024] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AA v R [2024] NSWCCA 132

Hearing dates:

1 July 2024

Date of orders:

19 July 2024

Decision date:

19 July 2024

Before:

Ward P and Wilson J at [1]
Dhanji J at [13]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – severity appeal – ongoing sexual offending by applicant against his stepdaughters – extremely serious offending – totality considerations – principles in Mill v The Queen – whether aggregate sentence is affected by erroneous sentence indicated for particular count – whether error had the capacity to influence the aggregate sentence – where not possible to conclude error could not have affected the aggregate sentence – sentencing discretion exercised afresh – regard to conditions experienced by persons in custody – applicant’s subjective case – extremely deprived upbringing – lengthy criminal history – where applicant on conditional liberty at the time of offending – where no lesser sentence other than that imposed by the sentencing judge is warranted – leave to appeal granted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M, 66A

Crimes (Administration of Sentences) Act 1999 (NSW)

Criminal Appeal Act1912 (NSW), s 6, s 5(1)(c)

Crimes (Domestic and Personal Violence Act) 2007 (NSW), s 13

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21B

Cases Cited:

AJ v R [2023] NSWCCA 158

Benn v R [2023] NSWCCA 24

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

C v R (2013) 229 A Crim R 223; [2013] NSWCCA 81

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Harris v R [2023] NSWCCA 44

Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33

Hoskins v R [2021] NSWCCA 169

Ibrahim v R [2022] NSWCCA 134

JM v R [2014] NSWCCA 297

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lee v R [2023] NSWCCA 70

Lloyd v R [2022] NSWCCA 18

Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Newman (a pseudonym) v R [2019] NSWCCA 157

PN v R [2024] NSWCCA 86

R v Gavel [2014] NSWCCA 56

R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97

R v Totten [2003] NSWCCA 207

Standen v Regina (2015) 253 A Crim R 301; [2015] NSWCCA 211

TheKing v Hatahet [2024] HCA 23

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26

Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14

WAP v R [2017] NSWCCA 212

Young (a pseudonym) v R [2021] NSWCCA 163

Category:

Principal judgment

Parties:

AA (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Ramrakha (Applicant)
J Styles (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00171780

Publication restriction:

Orders made by Colefax DCJ on 4 March 2021:
1. Order: Suppression order made of the name of the accused and any other information which might, directly or indirectly, identify him.
2. Order: Non publication order made of the name of the (x2) complainants and any other information which might, directly or indirectly, identify them.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 November 2022

Before:

English DCJ

File Number(s):

2020/00171780

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, AA was found guilty by a jury of 11 child sexual abuse offences against his two stepdaughters, BB and CC following a trial in the District Court of New South Wales at Campbelltown. On 11 May 2023 her Honour Judge English (“the sentencing judge”) sentenced the applicant to an aggregate sentence of 20 years imprisonment, with a non-parole period of 15 years, commencing on 10 June 2020.

The applicant sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him by the sentencing judge.

The principal issues on appeal were:

1. Whether the sentencing judge failed to have regard to the sentence imposed on the applicant in 2017 for related offending against the victim, BB in accordance with Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70;

2. The significance of an error as to an indicative sentence relating to a particular count (count 9) for the purpose of an appeal against the aggregate sentence; and

3. Whether, as a result of this Court’s view that ground 2 had been established, the appeal should be upheld, and a lesser sentence passed.

The Court held (per Dhanji J, Ward P and Wilson J in separate reasons ), dismissing the appeal:

As to issue (2), per Dhanji J:

1. At [52]: Although not every error in an indicative sentence will necessarily infect the aggregate sentence as to require resentence, in this case, the error was such that the sentencing discretion miscarried. The applicant was not required to establish that the error had an actual effect on the sentence. Rather, it was sufficient that the applicant establish that the error had the “capacity to influence the sentence”: Benn v R [2023] NSWCCA 24 at [82], quoting from Newman (a pseudonym) v R [2019] NSWCCA 157 at [11].

2. At [53]: In the present case, count 9 was one of 11 offences. It was also one of the less serious offences dealt with by the sentencing judge. There was no suggestion in her Honour's reasons that the criminality in count 9 was subsumed by the other offences, or that, had an actual sentence been imposed, that sentence would have been wholly concurrent. In those circumstances, it was not possible to conclude that the error could not have affected the aggregate sentence. As such, this ground was established.

   Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14, considered

   Young (a pseudonym) v R [2021] NSWCCA 163, considered

   AJ v R [2023] NSWCCA 158, applied

As to issue (2), per Ward P and Wilson J:

1. At [4]: Where there is clear error in an indicative term, it may signal error in the aggregate term. Much will depend upon the circumstances of the individual case and the level of notional concurrence and accumulation involved in the determination of the aggregate sentence. In some cases, any error in an indicative term will be subsumed and overtaken by the application of the principle of totality such that there is no discernible capacity for the error to have had an impact upon the aggregate sentence. In others, it will be found to have contributed to or occasioned error in the sentencing order of the court.

2. At [5]: In the applicant's case, there may have been some impact upon the aggregate sentence imposed and, given the Crown had conceded that a patent error had been established, this Court was prepared to conclude that the ground had been made out.

As to issue (1), per Dhanji J (Ward P and Wilson J in separate reasons):

1. At [55]: As a result of this Court’s view that ground 2 had been established, it became necessary for this Court to re-exercise the sentencing discretion. In the circumstances, it was not strictly necessary to determine ground 1. However, the arguments in relation to ground 1 were considered by the Court because they informed the re-exercise of the sentencing discretion.

2. At [64]: The facts of the offence committed by the applicant against BB in 2016 demonstrated that the applicant's offending behaviour continued beyond the period on the indictment, which was relevant to the weight to be given to specific deterrence. While her Honour did not specifically refer to this aspect of the relevance of the 2016 matter, given that it was before her, not simply as a bare entry on a criminal record, but that BB had given evidence of the event, the likelihood that it impacted the sentencing exercise could not readily be discounted. It was necessary to have regard to totality, including the sentence for the 2016 matter, together with various competing considerations affecting the impact of that matter when re-exercising the sentencing discretion.

   WAP v R [2017] NSWCCA 21, considered

As to issue (3), per Dhanji J (Ward P and Wilson J in separate reasons):

1. At [73]-[78]: The applicant’s offending was extremely serious. He had assumed the role of father to the victims. The applicant used his authority to subjugate the victims to his selfish ends, causing damage where it was his responsibly to nurture. The applicant had a lengthy criminal history and was on conditional liberty at the time of, at least, counts 1 to 3 on the indictment. The Court accepted that the applicant’s upbringing was significantly dysfunctional so as to reduce his moral culpability. However, the applicant continued to deny the offences and did not have the benefit of a finding of remorse. This, and his apparent lack of insight, negatively impacted his prospects of rehabilitation.

   Hoskins v R [2021] NSWCCA 169, considered

   Lloyd v R [2022] NSWCCA 18, considered

   Ibrahim v R [2022] NSWCCA 134, considered

   Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, considered

   Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, considered

2. At [80]: Neither party engaged in any detailed analysis of why a lesser sentence was or was not warranted. That did not allow this Court to dismiss the matter on the basis that the applicant had not persuaded it that a lesser sentence was warranted.

   Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, applied

   Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered

3. At [81]: The Court had regard to the maximum penalties and, where applicable, any standard non-parole period as legislative guideposts, the facts of each offence and the sentencing judge’s assessment of its objective seriousness together with the applicant’s subjective case. The Court had recourse to the Judicial Commission’s sentencing statistics and the sentences imposed in a number of other cases, as secondary considerations. Ultimately, the Court was not satisfied that any lesser sentence than that imposed by the sentencing judge was warranted. Accordingly, the appeal was dismissed.

JUDGMENT

1. WARD P and WILSON J: This is an application for leave to appeal against the sentence imposed upon the applicant by her Honour Judge English for 11 child sexual abuse offences of which the applicant was convicted following trial. The victims of these crimes were the applicant's two young step-daughters. Dhanji J has set out the facts of the offences, and the arguments of the parties before this Court, which we do not intend to repeat. His Honour has proposed that leave be granted to the applicant to appeal against the sentence imposed on 17 May 2023, and that the appeal is dismissed. We agree with the proposed orders, although we prefer to state our own reasons.

2. At the hearing of this matter, the Crown conceded that proposed ground 2, a complaint of error in the aggregate sentence, was made out. The applicant contends, and the Crown does not dispute, that the sentencing judge was in error in the determination of the indicative sentence announced with respect to count 9 of the indictment, an offence of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The offence relates to threats made by the applicant to BB, who was then aged 5, 6, or 7 years old, immediately after having subjected her to acts of sexual intercourse, charged contrary to s 66A of the Crimes Act 1900 (NSW). The applicant told BB, “Just keep this between you and me. It won't happen again. Don't tell mum or I'll hurt her, and I'll hurt your sisters”. BB took the threat seriously as she had seen the applicant acting violently towards her mother and knew he could hurt her family. It can be comfortably inferred that this threat contributed to BB's silence as to the very grave sexual abuse inflicted on her by the man she then believed to be her father.

3. In her remarks on sentence the sentencing judge assessed this offence, which carries a maximum penalty upon conviction of 5 years imprisonment, and/or a fine of 50 penalty units, as “falling at the mid-range” of gravity for such an offence. She took into account that the threat was made immediately after BB was sexually assaulted, by “the perpetrator of sexual violence”. The indicative sentence announced with respect to count 9 was one of 5 years imprisonment, with a non-parole period (“NPP”) of 3 years and 9 months. The applicant's complaint, broadly, is that the maximum penalty of 5 years was announced as the indicative term for an offence assessed as falling in the mid-range of gravity, and this must point to error.

4. As R A Hulme J said in JM v R [2014] NSWCCA 297 at [40], there can be no appeal against an indicative sentence because an indicative sentence is not a sentencing order. The appeal lies only against the aggregate sentence. See also PN v R [2024] NSWCCA 86 at [47], which followed and applied JM and the long line of similar authority thereafter. Although it is not axiomatic, where there is clear error in an indicative term, it may signal error in the aggregate term. Much will depend upon the circumstances of the individual case and the level of notional concurrence and accumulation involved in the determination of the aggregate sentence. In some cases, any error in an indicative term will be subsumed and overtaken by the application of the principle of totality such that there is no discernible capacity for the error to have had an impact upon the aggregate sentence. In others, it will be found to have contributed to or occasioned error in the sentencing order of the court.

5. In the applicant's case, there may have been some impact upon the aggregate sentence imposed and, bearing in mind the Crown's concession, we are prepared to conclude that the ground is made out. Where error has been established the Court must re-exercise the sentencing discretion unless it determines that no lesser sentence is warranted: s 6(3) Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. That no lesser sentence is warranted or could be imposed is our conclusion. Any diminution in the term of the sentence imposed upon the applicant would fail adequately to reflect the grave criminality of his offending.

6. The starting point to the determination of a proper sentence is the guidance provided by the maximum penalties specified with respect to the 11 offences, and any standard non-parole period (“SNPP”) that may apply. Five of the offences, those contrary to s 66A (counts 2, 7, 8, 10, and 11), carry a maximum penalty of life imprisonment with a SNPP of 15 years. Two offences, those contrary to s 61M(2) of the Crimes Act, carried at the time a maximum penalty of 10 years with a SNPP of 8 years. Count 4, an offence of aggravated sexual assault, carries a maximum penalty of 20 years imprisonment with a SNPP of 10 years. The remaining three offences, all offences of intimidation, had a maximum penalty as already noted, a term of imprisonment of 5 years. The maximum penalties specified by the legislature provide an important statement of the gravity with which the community regards these offences, noting in particular the high maximum penalties that apply to sexual offending against children. The sentence to be imposed must reflect those statutory guidelines.

7. As the sentencing judge concluded, these were very grave offences committed against two utterly vulnerable young children to whom the applicant owed a parental duty. Whilst he was not the children's father, he played that role in their lives, was referred to by them as “dad”, and they understood him to be their father. The applicant abused that position of trust and responsibility to treat his step-daughters as sexual objects for his vile and perverted gratification. He employed threats and intimidation to secure the children's silence about his abhorrent acts, without regard for the fear instilled in each concerning danger to their mother and siblings. The damage done by the applicant's despicable crimes is very great, there being a greater understanding in present times of the profound and deleterious effect that child sexual abuse has upon victims for many years, and potentially for the whole of their lives: see R v Gavel [2014] NSWCCA 56 at [110] and the authorities cited therein.

8. The applicant does not take issue with the findings of the sentencing judge.

9. As her Honour observed, the applicant's childhood was marred by dysfunction and there should be a consequential diminution in his moral culpability for these crimes. That does not mean, however, that the sentence to be imposed upon him cannot adequately reflect the great harm done, and the need to recognise that harm and vindicate the rights of BB and CC to a childhood unaffected by intimidation, abuse and sexual manipulation. It must also comprehend the principle of general deterrence, although to a lesser degree than would otherwise be the case, having regard to his unfortunate background.

10. The indicative terms we would announce for the 11 offences are not greatly dissimilar to those announced by the sentencing judge, although we would have indicated a higher term than did her Honour with respect to counts 3 and 5, bearing in mind the ages and vulnerability of the children, the purpose of the threats, and the role of the applicant in the children's lives. For count 9, we consider a lesser term than that announced by the sentencing judge and would have imposed a term of 3 years imprisonment if dealing with the offences individually. It is not otherwise necessary to state the indicative terms we regard as appropriate since we have concluded that no lesser aggregate sentence is warranted than that imposed at first instance.

11. As to ground 2, since we have upheld ground 1 and proceeded to re-exercise the sentencing discretion, there is no utility in considering or determining this ground. Suffice to say that we have had regard to the sentence imposed upon the applicant on 26 October 2017 for the 2016 offence committed against BB, and taken that sentence, and the whole of the criminality of the applicant's crimes against his step-daughters, into account in considering the proper sentence to be imposed upon the applicant for these crimes, in accordance with the principle discussed in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; WAP v R [2017] NSWCCA 212; Harris v R [2023] NSWCCA 44, and others.

12. For these reasons, we would grant the applicant leave to appeal, but order that the appeal is dismissed.

13. DHANJI J:

Introduction

14. The applicant, AA, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him by her Honour Judge English (“the sentencing judge”) on 17 May 2023 in the District Court of New South Wales at Lismore.

15. The applicant was found guilty by a jury of various sexual offences against his two stepdaughters following a trial conducted from 21 November 2022 to 6 December 2022 in the District Court of New South Wales at Campbelltown. Sentencing proceedings took place on 11 May 2023.

16. The applicant was sentenced to an aggregate sentence of 20 years imprisonment, with a non-parole period of 15 years, commencing on 10 June 2020. The non-parole period will end on 6 June 2035 and the full-term is to expire on 6 June 2040.

17. The following table outlines the offences for which the applicant was sentenced, their maximum penalties, the applicable standard non-parole periods (“SNPPs”) and the objective seriousness and indicative sentences as determined by the sentencing judge:

Count	Offence	Maximum Penalty / SNPP	Objective seriousness	Indicative Sentence
1	Indecent assault person under 16 years: s 61M(2) Crimes Act 1900 (NSW)	Max Penalty - 10 years SNPP - 8 years	Mid-range	5 years, with NPP of 3 years and 9 months
2	Sexual intercourse person under 10 years (under authority): s 66A(2) Crimes Act	Max Penalty - Life SNPP - 15 years	Mid-range	15 years, with NPP of 11 years and 3 months
3	Stalk/intimidate: s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“C(DPV)A”)	Max Penalty - 5 years	Less than mid-range	1 year
4	Aggravated sexual assault person under 16 years: s 61J(1) Crimes Act	Max Penalty - 20 years SNPP - 10 years	Mid-range	10 years, with NPP of 7 years and 6 months
5	Stalk/intimidate: s 13(1) C(DPV)A	Max Penalty - 5 years	Mid-range	2 years
6	Indecent assault person under 16 years: s 61M(2) Crimes Act	Max Penalty - 10 years SNPP - 8 years	Below mid-range	4 years and 3 months
7	Sexual intercourse person under 10 years (under authority): s 66A(2) Crimes Act	Max Penalty - Life SNPP - 15 years	Mid-range	18 years, with NPP of 13 years and 6 months
8	Sexual intercourse person under 10 years (under authority): s 66A(2) Crimes Act 1900	Max Penalty - Life SNPP - 15 years	Just above mid-range	18 years, with NPP of 13 years and 6 months
9	Stalk/intimidate: s 13(1) C(DPV)A	Max Penalty - 5 years	Mid-range	5 years, with NPP of 3 years and 9 months
10	Sexual intercourse person under 10 years (under authority): s 66A(2) Crimes Act	Max Penalty - Life SNPP - 15 years	Just above mid-range	18 years, with NPP of 13 years and 6 months
11	Sexual intercourse person under 10 years (under authority): s 66A(2) Crimes Act	Max Penalty - Life SNPP - 15 years	Mid-range	15 years, with NPP of 11 years and 3 months

18. The offences took place between August 2009 and March 2013. A number of the provisions against which the applicant was charged have been amended or replaced. He was, of course, charged against provisions as in force at the relevant time.

19. The applicant was arrested on 10 June 2020 whilst in custody for another offence. The sentencing judge determined that the sentence should commence from this date.

Grounds of appeal

20. The applicant relies upon the following grounds of appeal:

Ground 1:    The sentencing judge failed to have regard to the sentence imposed on the applicant in 2017 for related offending against the victim, BB in accordance with Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70.

Ground 2:    The aggregate sentence is affected by the erroneous sentence indicated for count 9.  

21. The respondent Crown did not accept that the sentencing judge failed to properly take into account an antecedent related offence (ground 1). The Crown however accepted that it would be open to this Court to conclude that the sentencing judge erred in relation to the indicative sentence referable to count 9 and that such an error amounted to a patent error that has the capacity to influence the aggregate sentence (ground 2). The Crown also accepted that it followed that this Court would independently re-exercise the sentencing discretion. However, the Crown submitted that, having exercised the sentencing discretion afresh, this Court would conclude that no other (lesser) sentence is warranted and accordingly that the appeal should be dismissed.

Factual Background

22. A document setting out the facts established at trial was prepared by the Crown for the purposes of sentencing and was tendered in the sentence proceedings by consent. The following background has been taken from that document, together with the parties’ written submissions on appeal.

23. The offences were committed by the applicant against his two stepdaughters, CC and BB and constituted ongoing sexual misconduct against them.

24. The applicant and the victims' mother, DD, were in an intimate relationship and moved in together in around 2000. In addition to CC and BB, the applicant and DD had three children together. Throughout their childhood, CC and BB did not know that the applicant was not their natural father.

Counts 1, 2 and 3 – offences against CC on an occasion between 3 August 2009 and 16 November 2010

25. CC’s first recollection of the applicant touching her inappropriately was when she was seven years old. The applicant took CC into his bedroom. The applicant dropped his shorts, took hold of CC’s hand and placed it on his penis (count 1). The applicant then forced CC’s head towards his penis and pushed his penis into her mouth (count 2). When that offence concluded, The applicant said to the victim, “[d]on't tell mum or I will hurt you, mum and the girls” (count 3). CC believed AA’s threat as she had seen the applicant assault her mother on several occasions.

Counts 4 and 5 – offences against CC on an occasion between 28 October 2011 and 31 October 2012

26. On another occasion, CC was sleeping with her sister. The applicant entered CC’s bedroom and moved her sister to the side. He then pulled the bedsheet down and began to touch CC on top of her clothing. The applicant spat onto his hand and placed his hand into CC’s shorts. He touched CC’s genitalia and she felt the applicant insert one finger into her vagina. She told him to stop but the applicant did not. CC felt pain and said to the applicant, “[i]f you don’t stop, I will scream the house down” (count 4). The applicant then stopped, put his hand over CC’s mouth and said, “[d]on’t say anything or I will kill you” (count 5).

Count 6 – an offence against BB committed between 28 October 2011 and 11 March 2013

27. BB reported an incident involving the applicant which took place some months after her fifth birthday. She was awoken by the applicant, who came into her bedroom when the rest of the family was asleep. BB was lying on her front and the applicant put his hands under her shorts and rubbed her back. The applicant then put one of his hands under BB’s underwear and touched her bottom.

Counts 7, 8 and 9 – offences against BB committed on an occasion between 28 October 2011 and 11 March 2013

28. On a separate occasion, the applicant told BB to go to his bedroom, which he shared with DD. The bedroom had a lockable door. BB was scared and did as she was instructed. The applicant told her to remove her clothes and pulled his own pants down, leaving his underwear on. The applicant got under a blanket with BB and licked her vagina. The applicant asked BB whether it “felt good”. BB said “no”. She repeatedly asked the applicant to stop and said, “[c]an you please stop. I don’t feel comfortable.” The applicant ignored BB and continued to lick her vagina (count 7).

29. The applicant then instructed BB to perform fellatio on him. The applicant said “[j]ust do it for me. If you love me, you’ll do it.” BB tried to move away, but the applicant pulled her back, forced her down and put his penis in her mouth (count 8). BB continually struggled but the offender would not let her go. The applicant then resumed licking BB’s vagina. She asked to leave but the applicant denied her request and pushed her down, repeatedly, forcing her to remain where she was.

30. After some time, the applicant stopped licking BB’s vagina and told her to have a shower. She did so, and then put her clothes back on. The applicant then said, “[j]ust keep this between me and you, it won't happen again ... don't tell mum or I'll hurt her, and I’ll hurt your sisters” (count 9).

Counts 10 and 11 - offences against BB committed on an occasion between 28 October 2011 and 11 March 2013

31. On another occasion, when DD had left home to go shopping, the applicant told BB to go to his bedroom. BB declined, saying she had to clean her bedroom. The applicant said, “I’ve got to tell you something” and BB followed him to his bedroom. The applicant then told BB to remove her clothes, forced her down, and licked her vagina. As the offence occurred, the applicant said, “[d]oes it feel good, do you like it, do you want me to stop or do you want me to keep going”. BB replied, “[n]o, can you stop? I just want to go. Can you stop doing it”. The applicant said, “[y]ou know you like it, you know you want me to keep going”. BB replied, “[n]o I don't, I want you to stop, can you stop please”. The applicant ignored her and continued to lick her vagina (count 10).

32. The applicant then forced his penis into BB’s mouth (count 11). She felt tense, scared and as though she had no strength. The applicant again said, “[d]on't tell your mum or I'm going to hurt you, and your sisters”.

Uncharged acts

33. Both CC and BB gave evidence of several uncharged acts. CC said that the applicant would touch her breasts and touch her when she was showering. She said the applicant would also do “things” to her in the bushes when they went to the shops. The Facts document stated that the applicant sexually assaulted CC from the age of 7 to the age of 13, at which time she went to live with a relative to get away from the applicant.

34. BB said the applicant constantly came into her bedroom late at night when everyone was asleep. She said he rubbed her bottom cheeks and would also lay in her bed with her. She said she was too scared to fall asleep when the applicant was in her bed.

The applicant’s subjective case

35. The sentencing judge referred to the following features of the applicant’s subjective case.

36. The applicant is an Aboriginal man from western New South Wales. At the time of sentence he was 39 years old. His upbringing was highly dysfunctional. He was placed into foster care as a result of his parents’ drug use.

37. The applicant attended school until year 9, when he was expelled for possession of a knife. He has undertaken only sporadic work placements.

38. While in foster care, the applicant suffered a serious injury to his eye as a result of mistreatment. The applicant was also the victim of sexual abuse whilst in foster care, and additionally whilst in juvenile detention.

39. The applicant attempted to reside with his older brother when he was 12 years old but was not welcomed. He reported feeling abandoned as a result.

40. In 1996, while in foster care, the applicant was assessed and diagnosed as follows:

“… diagnoses of low average ability of intellectual and cognitive functioning; depression with psychotic features; and chronic adjustment disorder with mixed disturbance of conduct and emotion.”

41. The applicant has a reported history of suicide attempts, which occurred in 2007 and 2008. He has been psychiatrically assessed on six occasions whilst in custody but has not been prescribed any specific treatment.

42. The applicant was introduced to drugs at a very young age by his parents and began to abuse illicit substances from the age of 13, including cannabis, heroin and methamphetamines.

43. The sentencing judge found that the principles as set out in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were “fully enlivened” in the applicant’s case. Her Honour found that, were it not for the impact of his extremely deprived upbringing, AA’s moral culpability for the offending would have been significantly greater.

Ground 2 - the aggregate sentence is affected by the erroneous sentence indicated for count 9

44. Having regard to the position taken by the Crown, it is convenient to deal with this ground first. As set out above, the applicant was sentenced for a total of 11 offences. Her Honour imposed a single aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). In accordance with s 53A(2) of the CSPA, her Honour indicated the length of the sentence that she would have imposed with respect to each offence had she not imposed an aggregate sentence. With respect to all offences other than counts 1, 5, and 6, her Honour also nominated a putative non-parole period relating to that indicative sentence. The indication of a non-parole period for an indicative sentence to which a standard non-parole period applies is mandated by s 54B(4) of the CSPA.

45. In the present case, no non-parole period was set in relation to count 6 despite the existence of a standard non-parole period. This appears to have been an oversight. No issue was taken with respect to this matter on the appeal. This was presumably on the basis that the error was not material in the determination of the aggregate sentence, an issue discussed below.

46. The applicant took issue with the indicative sentence for count 9. Count 9 was an offence of intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence Act) 2007 (NSW), with a corresponding maximum penalty of imprisonment for 5 years. As has been set out above, her Honour made findings with respect to the objective seriousness of each of the offences. That finding was a factor then to be considered together with all other relevant matters in order to arrive at an appropriate indicative sentence. It is convenient to recall her Honour found count 9 to be “at the mid-range”. The indicative sentence was 5 years with a non-parole period of 3 years and 9 months.

47. As can be seen, the indicative sentence with respect to count 9 was the maximum available term of imprisonment. As was established in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 the maximum available term of imprisonment is appropriate for a worst case offence which is determined having regard to both the objective gravity of the offending and the circumstances of the offender. Her Honour's nomination of the maximum penalty is inconsistent with the finding that the offence was “at the mid-range”.

48. Her Honour's indicative sentence with respect to count 9 can also be contrasted with the indicative sentences for counts 3 and 5, each of which was charged against the same provision. Those offences were found to be respectively, below the mid-range and at the mid-range. The indicative sentences with respect to those matters, of 1 year and 2 years respectively, are commensurate with the finding of objective gravity for those matters. It might also be noted that, in contrast to the approach to counts 3 and 5, her Honour's indicative sentence for count 9 included a non-parole period, despite the absence of any obligation to do so. While it is open to a sentencing judge to include a non-parole in an indicative sentence relating to an offence that does not have a standard non-parole period, it is not clear why her Honour did this for count 9 but not for counts 3 or 5. It was submitted by the Crown that this tends to suggest her Honour mistook the legislative guidepost appropriate to the offence.

49. The Crown conceded that a patent error has been established and that it was open to the Court to find the error had a capacity to affect the aggregate sentence. That concession should be accepted. An indicative sentence set at the maximum penalty for an offence in the mid-range of objective seriousness bespeaks error. It offends the fundamental principle of proportionality: Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14. The error is similar to that found in indicative sentences in Young (a pseudonym) v R [2021] NSWCCA 163 at [85].

50. The relevance of an error in an indicative sentence has been discussed many times. In AJ v R [2023] NSWCCA 158 Button J, with whom Simpson AJA and Hamill J agreed, said (at [30]-[37]):

“30   It is trite law that only the aggregate sentence can be impugned directly by an appeal, simply because it is the only sentence actually imposed: see JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]; Kerr v R [2016] NSWCCA 218 at [114].

31    Having said that, the statutory system of aggregate sentencing was introduced to relieve sentencing judges of legalistic and formalistic requirements with regard to setting cascading or interlocking commencement and expiry dates of sentences: see generally JM v R at [39]; R v Rae [2013] NSWCCA 9 at [43]-[45]; Truong v R [2013] NSWCCA 36 at [231]; and, more recently, Sharma v R [2022] NSWCCA 190 at [4].

32    It was not intended to change sentencing law substantively, including the availability of different kinds of appeal against sentence: see PG v R [2017] NSWCCA 179 at [90].

33    It is unsurprising in those circumstances that this Court has shown itself comfortable with grounds that attack aggregate sentences on the basis of the asserted errors in the indicative sentences that underpinned them: for a recent example, see Davidson v R [2022] NSWCCA 153 at [16], [39]-[43].

34    Here, it was inevitable that, for every offence, a very substantial indicative sentence would be provided, including when compared to the available maximum penalty. But I cannot accept that, with regard to count 1 and count 3, it could have been appropriate to adopt a starting point that was only two months short of the maximum penalty. Grave though the offending was in many ways, and limited though the subjective case was in some ways, I cannot accept that an instinctive synthesis of all relevant objective and subjective circumstances could have led appropriately to such a relationship between the starting point and the applicable maximum penalty.

…

37    Contrary to the submission of the Crown, the starting points of two of the indicative sentences upon which the aggregate sentence is based must be erroneous. Whether that is the result of arithmetical error, or inadequate reflection upon the starting point, or over-emphasis on objective features adverse to the applicant and under-emphasis on subjective features favourable to him, is of little moment. I am satisfied that a significant portion of the substructure upon which the aggregate sentence is based is faulty. That means, in my opinion, that this Court should turn to consider resentence.”

51. I note my own observations, consistent with the above, in Lee v R [2023] NSWCCA 70 at [51]-[53].

52. It should be stressed that not every error in an indicative sentence will necessarily infect the aggregate sentence so as to require resentence. I am, however, satisfied that the error in this case is such that the sentencing discretion miscarried. In this regard, it is firstly important to stress that the applicant is not required to establish that the error had an actual effect on the sentence. Rather, it is sufficient that the applicant establish that the error had the “capacity to influence the sentence”: Benn v R [2023] NSWCCA 24 at [82], quoting from Newman (a pseudonym) v R [2019] NSWCCA 157 at [11]. In Benn v R, Gleeson JA helpfully set out (at [83]-[84]) examples of cases where an error in an indicative sentence was found not to have the relevant capacity, and cases where it did have that capacity.

53. In the present case, count 9 was one of 11 offences. It was one of the less serious offences dealt with by her Honour. Nonetheless, the determination of indicative sentences is an important step in the process. While the total sentence viewed in the context of the indicative sentences suggests a high degree of notional concurrency, there was no suggestion in her Honour's reasons that the criminality in count 9 was subsumed by the other offences, or that, had an actual sentence been imposed, that sentence would have been wholly concurrent. In those circumstances, it is not possible to conclude that the error could not have affected the aggregate sentence.

54. Ground 2 has been established.

Ground 1 - the sentencing judge failed to have regard to the sentence imposed on the applicant in 2017 for related offending against the victim [BB] in accordance with Mill v The Queen

55. As a result of my view that ground 2 has been established, it is necessary for this Court to re-exercise the sentencing discretion, and, in the event that that exercise results in a lesser sentence than was imposed at first instance, to impose that lesser sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. While, in the circumstances, it may be strictly unnecessary to determine ground 1, the arguments in relation to ground 1 inform the exercise of that discretion. It is convenient therefore to consider the argument in support of ground 1.

56. The offending for which the applicant was sentenced took place between 3 August 2009 and 11 March 2013. The offences on the indictment spanning that period were accepted to be representative counts. Prior to being charged with the present offences, the applicant had been dealt with for an offence of indecently assaulting BB, contrary to the then s 61M(2) of the Crimes Act 1900 (NSW), committed on 8 July 2016 when BB was 10 years old. An affidavit was tendered on the appeal describing that offending behaviour as follows:

“Offending Against BB in 2016

4.    On 8 July 2016, when BB was aged 10 years and the applicant was aged 32 years, BB slept in the bed shared by her mother and the applicant at the applicant’s behest. She woke up after an unknown period of time to the applicant lying behind her. The applicant touched BB on her back with his penis and placed his arm around her waist and onto her lower abdomen. The applicant attempted to put his hand down BB’s pants but was unsuccessful. The following day, BB disclosed the incident to her mother and thereafter, to police. On 13 July 2016 BB participated in an electronically recorded interview with police at Gilgandra Hospital. [footnotes omitted]”

57. Evidence of this event was admitted as tendency evidence at the applicant's trial. (Evidence of the event was given at trial by BB in conjunction with evidence of supporting witnesses and BB’s recorded interview with police with respect to the offence.)

58. The applicant was convicted in his absence with respect to the 2016 matter. In 2017 he was sentenced to imprisonment for a period of 20 months and 12 days commencing 3 July 2017 and ending 14 March 2019, with a non-parole period of 15 months and 9 days commencing 3 July 2017 and ending on 11 October 2018.

57. Before the sentencing judge, the applicant submitted as follows:

“The issue of his prior criminal history, as I have mentioned in my submissions, your Honour, in the written submissions, he only has the one prior sexual offence and it’s against one of the same victims that your Honour is dealing with him for here. He received a lengthy custodial sentence for that matter and had that matter and these matters been dealt with together, there would have been, in my submission, some concurrency, and I would ask you to factor that into account. That was the matter where he was dealt with at the Dubbo Local Court in his absence, and I note my friend’s request that your Honour start the sentence from June 2021. That’s a matter that falls squarely within your Honour’s domain.”

60. The Crown at first instance in response said:

“… in relation to totality, I do agree with my learned friend in relation to had the 2016 offence come out at this time, or all the offences come out at that time, that it would somehow play into some degree of concurrency.”

61. On this application, counsel for the respondent, quite properly, indicated that the Crown did not resile from the stance taken at first instance. In other words, it was accepted that the potential for at least a degree of concurrency between the sentence imposed for the 2016 matter and the current matters was a relevant consideration: see generally Mill v The Queen; Harris v R [2023] NSWCCA 44. I note it was accepted by the applicant in this Court that consideration of the sentence imposed for the 2016 matter could be reflected in the commencement date of the sentence or in a reduction in the total sentence.

62. Her Honour made reference to the 2016 matters as follows:

“At the time he was arrested for these offences on 10 June 2020, he was serving a sentence of imprisonment for domestic violence related offending. He does have one earlier conviction in respect of the victim [BB] and it has been argued on his behalf that this conviction was recorded in his absence and could have been the subject of an appeal. However, that was not done. Hence, it stands. No doubt he continues to maintain that he did not commit that offence either.”

63. Despite the submission made on behalf of the applicant below, and the concession of the Crown, the sentencing judge made no reference to the potential for at least part of the 2017 sentence to have been subsumed in the sentence for the current matters, had all matters been dealt with together. Having regard to her Honour's reference to the sentence for the 2016 matter, but without any reference to its relevance to totality, I do not accept that her Honour can be inferred to have adopted the agreed position of the parties. While, as stated above, it is not strictly necessary to reach a final position, I am of the view her Honour failed to have regard to this relevant consideration.

64. It should be stressed that the 2016 matter was not relevant solely as a matter to be called on by the applicant in mitigation. The facts of that offence demonstrated that the applicant's offending behaviour continued beyond the period on the indictment. That he, again, committed a serious sexual offence against BB in 2016 is relevant to the weight to be given to specific deterrence. While her Honour did not specifically refer to this aspect of the relevance of the 2016 matter, given that it was before her, not simply as a bare entry on a criminal record, but that BB had given evidence of the event, I would not readily discount the likelihood that it impacted the sentencing exercise: cf WAP v R [2017] NSWCCA 212. Conversely, is also true that, had the sentencing magistrate been aware when sentencing for the 2016 matter, that the applicant had committed the various offences charged on the indictment, the learned magistrate may have been expected to give greater weight to specific deterrence and retribution. Ultimately, it is not a matter of this Court to balance out these competing considerations to determine their effect on the sentence passed at first instance. Rather, it is necessary to have regard to totality, including the sentence for the 2016 matter, together with the considerations affecting the impact of that matter to which I have referred, when re-exercising the sentencing discretion.

Resentence

65. Section 21B of the CSPA provides:

21B   Sentencing patterns and practices

(1)    A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing.

(2)    However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing.

(3)    Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if -

(a)    the offence is not a child sexual offence, and

(b)    the offender establishes that there are exceptional circumstances.

(4)    When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing.

(5)    This section does not affect section 19.

(6)    In this section -

child sexual offence has the same meaning as in section 25AA.

66. It is noted that this provision is similar, but broader, to a provision in force with respect to child sexual assault offences from 31 August 2018.

67. In approaching sentencing for, in particular, the matters charged against s 66A(2) and s 61J of the Crimes Act, it is necessary to have regard to current attitudes and the resultant sentencing patterns and practices. (Technically the relevant time is the time at which the applicant was sentenced in the District Court (see s 21B(4)); however there is no suggestion any relevant difference in that regard.)

Evidence on resentence

68. On resentence the applicant did not dispute any of the findings made by the sentencing judge as to the objective seriousness of the offending or the subjective circumstances of the applicant. On resentence the applicant relied on his own affidavit and an affidavit of his instructing solicitor.

69. In his affidavit the applicant states that he is currently classified A2 which I understand requires him to be placed in a maximum security jail. The affidavit of the applicant's solicitor notes that as a result of the applicant's sentence he is managed as a serious offender under the Crimes (Administration of Sentences) Act 1999 (NSW). The affidavit states by reference to a corrective services document setting out guidelines with respect to the classification of such prisoners, that the applicant will not be eligible for review of his classification until he is within 8 years of the expiry of the non-parole period (that is, after he has served 7 years of his non-parole period). Assuming that will be the case, the applicant will not be eligible to progress to a lower classification until June 2027.

70. The respondent Crown questioned the relevance of the corrective services guideline, on the basis that determination of the applicant’s classification is a matter for the executive, referring to TheKing v Hatahet [2024] HCA 23. That was a case concerned with eligibility for parole.

71. Sentencing courts have, however, long had regard to conditions experienced by persons in custody, including findings as to likely future conditions: R v Totten [2003] NSWCCA 207 at [43]-[44]; R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 at [180]; Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [254]; C v R (2013) 229 A Crim R 223; [2013] NSWCCA 81 at [41]-[44]; see also Standen v Regina (2015) 253 A Crim R 301; [2015] NSWCCA 211 at [490]. It has never been suggested that regard to an offender’s likely future conditions in custody is inconsistent with long standing High Court authority such as Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33; The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26 which made clear that whether or not an offender would be granted parole was not a relevant matter in the determination of sentence. I would require full argument on the issue before accepting that the decision in The King v Hatahet impacts the relevance of an offender's likely conditions of custody into the future, effectively overruling the decisions to which I have referred.

72. The applicant states in his affidavit that he has been working as a sweeper whilst at Junee Correctional Centre, noting that this is a trusted position within the gaol. He has been engaged in vocational training through TAFE which he hopes will assist him in maintaining a full-time job when released, something he has been unable to achieve in the past. He states that he has achieved stability through his engagement in the buprenorphine program which will also assist him in maintaining employment when released. The applicant in his affidavit notes that he was charged with failing to provide a urine sample in January 2023 but states that this was the result of an inability to provide the sample rather than an unwillingness to do so. The applicant states that his family ceased contact with him in January 2023 which has added to the burden of his imprisonment. The affidavit of the applicant's solicitor provides some support for the applicant's statements in relation to his work, study and loss of contact with his family.

Re-exercising the sentencing discretion

73. It hardly needs stating that the applicant's offending was extremely serious. He committed a total of 11 offences against two separate victims. The offences against s 66A(2) of the Crimes Act, of which there were five, carry a maximum sentence of imprisonment for life with a standard non-parole period of 15 years. The offence against s 61J(1) of the Crimes Act carries a maximum penalty of 20 years’ imprisonment. The applicant assumed the role of father to the victims. That fact goes to establishing an element of the offences where the applicant was charged with the aggravated form of an offence based on the victim being under his authority. It operates as an aggravating feature with respect to the other offences (making it a more serious instance of such an offence). The applicant used his authority, with the overt threats charged in the intimidation counts, to subjugate the victims to his selfish ends, causing damage where it was his responsibly to nurture.

74. The applicant has a lengthy criminal history. While it is true that that history did not contain any prior sexual offences, that is of limited significance given the period over which his offending occurred, which includes the offence in 2016.

75. On my reading of the applicant's criminal record, he was on conditional liberty at the time of counts 1 to 3. While he was on conditional liberty for a significant part of the date ranges particularised in remaining counts, that aggravating factor cannot be established beyond reasonable doubt with respect to those matters. It is noted that her Honour did not refer to this aggravating factor with respect to counts 1 to 3 in her reasons. While I take it into account as a matter adverse to the applicant, I do not give it significant weight given the different nature of the offending to which the applicant's conditional liberty related.

76. The applicant suffered a profoundly deprived upbringing. (I do not use the term “profound” on the basis that it is a necessary precondition to consideration of this factor: see Hoskins v R [2021] NSWCCA 169 at [57]; Lloyd v R [2022] NSWCCA 18 at [34]; Ibrahim v R [2022] NSWCCA 134 at [27].) The evidence established a background of extreme dysfunction. The sentencing judge accepted that the applicant's moral culpability was reduced as a result of that background. This finding was made in accordance with the principles in Bugmy v The Queen. The finding was not challenged on appeal and should be maintained.

77. While accepting that the applicant's upbringing was significantly dysfunctional, inevitably impacting on his moral development, the present case is, to my mind, one where the observations of the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, particularly at [50]-[55] are also pertinent.

78. The applicant went to trial and continues to deny the offences. He does not, therefore have the benefit of a finding of remorse. This and his apparent lack of insight, negatively impacted his prospects of rehabilitation which her Honour found to be “guarded”. The applicant was in custody serving a sentence at the time of his arrest on 10 June 2020. That was a sentence of two years with a non-parole period of 18 months, commencing on 8 June 2019, imposed for an offence of failing to comply with reporting obligations. Those reporting obligations were presumably the result of the applicant's conviction with respect to the offence against BB in 2016. As noted above, her Honour dated the sentence from the applicant's arrest. Her Honour mistakenly referred to the sentence in existence at that time as having a non-parole period of 1 year, and consequently incorrectly understood the applicant to have been arrested three days after the expiration of that non-parole period. The result was that the applicant’s sentence was (unintentionally) concurrent for almost 6 months of the non-parole period earlier sentence.

79. In determining the sentence for the present offence, I have regard to the earlier sentence imposed for the 2016 offence and the fact that there would have been some measure of concurrency had that matter been dealt with at the same time as the present matters. Having regard to the length of that sentence and the inevitable length of any sentence to be imposed for the present offences, the impact is not large. Conversely, I would not backdate the sentence beyond the expiry of the earlier non-parole period on 7 December 2020. In making these comparisons with the approach of the sentencing judge, I stress that it is not a matter of using that sentence as a starting point and then adding to or subtracting from that sentence.

80. Arriving at a sentence for the offences is not a simple task. Neither party engaged in any detailed analysis of why a lesser sentence was or was not warranted. That does not allow this Court to simply dismiss the matter on the basis that the applicant has not persuaded us that a lesser sentence is warranted: see Director of Public Prosecutions (Cth) v De LaRosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, per Simpson J (as her Honour was) at [283]-[290]. Her Honours observations are of greater force in the light of the High Court’s subsequent decision in Kentwell v The Queen, particularly at [42].

81. I have had regard to the maximum penalties and, where applicable, any standard non-parole period as legislative guideposts, the facts of each offence and the sentencing judge’s assessment of its objective seriousness together with the applicant’s subjective case. I have, additionally had recourse to the Judicial Commission’s sentencing statistics and the sentences imposed in a number of other cases, as secondary considerations. I have considered what I would regard to be appropriate indicative sentences for each offence. Those sentences are generally shorter (and in some cases substantially shorter) than those indicated by the sentencing judge, particularly for the offences charged against s 66A(2). I would, however, allow for a greater degree of notional cumulation, particularly as between the two separate complainants. Ultimately, it is not necessary to set those indicative sentences out. I have considered what I would regard to be an appropriate aggregate sentence for all the offences and the appropriate commencement date. Having done so, I am not satisfied that any lesser sentence than that imposed by the sentencing judge is warranted.

82. The appeal must be dismissed. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Decision last updated: 19 July 2024