AB v The Queen

[2020] NSWCCA 170

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

AB v R [2020] NSWCCA 170

Hearing dates:

10 July 2020

Date of orders:

22 July 2020

Decision date:

22 July 2020

Before:

Hoeben CJ at CL at [1]
Adamson J at [2]
Bellew J at [3]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Where applicant pleaded guilty to four counts of aggravated indecent assault of a person under 16 and one count of inciting a person under 16 to commit an act of indecency – Grounds of appeal drafted by self-represented applicant – Whether sentencing judge erred in assessing special circumstances – Whether sentencing judge intended a modest reduction in the non-parole period – Whether sentencing judge erred in assessing the applicant’s prospects of rehabilitation – Whether sentence was manifestly excessive – No error established – Leave to appeal granted – Appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Bell v R [2019] NSWCCA 271

Caristo v R [2011] NSWCCA 7

Gumbleton v R [2017] NSWCCA 314

Jiang v R [2010] NSWCCA 277

Maglis v R [2010] NSWCCA 247

Park v R [2020] NSWCCA 90

R v Cramp [2004] NSWCCA 264

R v Fidow [2004] NSWCCA 172

R v Goodwin (1990) 51 A Crim R 328

Category:

Principal judgment

Parties:

AB – Applicant
Regina – Respondent

Representation:

Counsel:
Applicant – Self-represented
M Kumar – Crown

Solicitors:
C Hyland Solicitor for Public Prosecutions - Crown

File Number(s):

2018/158916

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 May 2019

Before:

Her Honour Judge Herbert

Judgment

1. HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.

2. ADAMSON J: I agree with Bellew J.

3. BELLEW J:

INTRODUCTION

4. On 11 April 2019, AB (the applicant) appeared before her Honour Judge Herbert in the District Court of NSW and pleaded guilty to the following offences:

1. Between 1 January 1996 and 30 December 1996, at Lismore Heights in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 11 or 12 years (Count 1).

2. Between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 13 or 14 years (Count 2).

3. Between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 13 or 14 years (Count 3).

4. Between 1 January 1998 and 30 December 1998, at Telopea in the State of New South Wales, did assault (LC) and at the time of the assault committed an act of indecency on (LC), in circumstances of aggravation, namely, that at the time of the offence (LC) was aged under the age of 16 years, being in fact aged 13 or 14 years (Count 4).

5. Between 10 February 1997 and 30 December 1997, at Eastwood in the State of New South Wales, did incite (TC), a person then under the age of 16 years, namely 11 years, to an act of indecency with AB (Count 5).

5. In respect of Count 1 the applicant asked her Honour to take into account three further offences set out in a Form 1, namely offences of:

1. aggravated indecent assault committed on LC between 1 January 1997 and 30 December 1997;

2. inciting LC, a person under the age of 16 years, to commit an act of indecency; and

3. assaulting TC.

6. The offending in each of Counts 1 - 4 was contrary to s 61M(1) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 7 years’ imprisonment. The offending in Count 5 was contrary to s 61N(1) of the Act, the maximum penalty for which was 2 years’ imprisonment.

7. The sentencing judge gave the following indicative sentences:

1. Count 1 – 3 years and 9 months’ imprisonment;

2. Count 2 – 2 years and 3 months’ imprisonment;

3. Count 3 – 3 years’ imprisonment;

4. Count 4 - 2 years’ imprisonment;

5. Count 5 – 9 months’ imprisonment.

8. Her Honour imposed an aggregate sentence of 5 years’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment.

9. The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

THE FACTS OF THE OFFENDING

Background

10. Her Honour set out the background to the offending as follows: [1]

The facts in this are that the accused met (VP) in 1992 at a Jehovah's Witness congregation meeting in Bunbury, Western Australia. They formed a relationship later that year and the accused married (VP). (VP) had two children with a former husband, being the victims L and T. L was born on 29 April 1984. T was born on 10 February 1986. The accused became stepfather to the two victims when they all moved to New South Wales as a family.

In the year of 1996, the accused was 25 years old and the victim L, she was aged 11 or 12 years old. The family were living at Lismore Heights. Early in that year, a family holiday was planned to travel to Dreamworld in Queensland towards the middle of the year. Prior to the holiday, L was stealing money from her mother's handbag. On one occasion, she stole $5 or $10 from her mother's handbag.

Several days after taking the money, the accused called a family meeting after dinner. During this family meeting, the victims L and T were asked about the stolen money, but neither admitted taking the money. The accused told L and T if neither of them was going to admit it, the holiday to Dreamworld would be cancelled. Both kept quiet and were sent to bed.

1. ROS 1-2.

Count 1 and the Form 1 Offences

11. In respect of Count 1 her Honour found the following facts: [2]

    2. ROS 2-3.

L had her own bedroom and slept on her own. After the family meeting, she was in bed when the offender entered her room to say good night. He sat beside her bed and she admitted to stealing the money. She became emotional, pleading with him not to cancel the holiday. The offender hugged her, telling her she did the right thing in telling the truth.

She lay back in the bed and as she did this, the offender put his hand underneath the bed sheet, underneath her top and started to rub her stomach in a circular motion. The offender remained silent as he ran his hands up the victim's stomach, over her chest, before moving his hand down underneath her underwear, over her vagina where he continued to rub her.

L told the offender to stop. The offender stopped for a moment, telling L it was "ok". He ignored her request and continued to rub the outside of her vagina for several minutes. L lay there, believing this was the offender's way of forgiving her for what she had done.

The following day, things continued normally within the household. L did not speak with her brother or mother about what had happened.

Following this incident, the offender regularly entered L's bedroom in the evening to say good night and would rub the outside of her vagina for a short time before leaving the room.

In relation to the Form 1 offence for common assault, in 1996, the victim T would wet the bed on occasions. The accused punished the victim for wetting the bed and on one occasion forcibly rubbed his face into the bed sheets where he had just wet the bed. The victim T was nine or ten years old at the time.

In 1997, the accused was 26 and the victim L was 13 years old and T was 11. Toward the start of the year, the family moved to Sydney, as the offender was starting a new job. They moved to a three-bedroom home in Eastwood.

The sexual abuse against L continued as it had in Lismore Heights on a regular and consistent basis. The offender would enter her bedroom of an evening to say good night, he would place his hand in her underwear and rub her vagina.

Form 1 offence for aggravated indecent assault. At the home in Eastwood there was a pool and in the year 1997 during summer, the offender and L were at home. L was 12 or 13 years of age. L was in the backyard while the offender swam in the pool. The offender called out to her, telling her she should take her clothes off and go in for a swim. Initially, she ignored him. She did not wish to swim naked. The offender persisted, asking several more times, to the point where she felt she did not have a choice. She took off her clothes and got into the pool naked.

After swimming for some time, the offender told L that it was time to get out of the pool. They got out of the pool, drying themselves before entering the house. The offender led L inside where they sat down together on the couch in the rumpus room. L was still undressed, while the offender wore bathers. The offender put his arm around L, placing his hand on the inside of her thigh next to her vagina. They both sat there as the offender watched television. As they sat on the couch, a car pulled into the carport, being her mother. Hearing the car, the offender told L to go and get dressed.

The offence on the Form 1 of incite person under 16 years to commit an act of indecency. The facts for this offence are that between the middle of 1997 and the middle of 1998, the family moved from the Eastwood home to a home at Telopea where they stayed temporarily. This was the home of friends of the accused.

Count 2

12. In respect of Count 2, her Honour found the following facts: [3]

While staying at the Telopea unit, there was a time when the accused was alone with L. She would have been 13 or 14 years of age. He took L into one of the bedrooms, told her to take all her clothes off and to lay on the bed, lying face down. The offender then rubbed her naked body and told her to turn over, which she did, rolling on to her back. For several minutes, he rubbed her stomach, legs and the outside of her vagina. After rubbing her vagina and her naked body with massage oil, he told her it was her turn to give him a massage. That is an aggravated, indecent assault of the victim.

The Form 1 offence is an incite offence. The facts of the incite offence are that the offender stood up, removed all his clothing, lay on the bed next to L, who was still naked. She saw that the offender had an erection. The offender got L to rub his stomach and chest with massage oil, saying to her, "You can touch it if you want to", referring to his erect penis. As she rubbed him, L did not want to, but as the offender persisted, insisting that she should touch his penis, because of his persistence, L used an open hand to stroke the erect penis of the offender.

3. ROS 4-5.

Count 3

13. In respect of Count 3, her Honour found the following facts: [4]

The facts for count 3, an aggravated indecent assault. After the offender had L rub his erect penis, they moved to the bathroom. The offender took her into the shower with him. He started to wash her body with soap to remove the oil from their bodies. The offender bumped into L with his erect penis which would touch the side of her hip. L felt so uncomfortable that she got out of the shower. She was petrified and physically shaking. She was 13 or 14 years old at the time.

The family later moved to a more permanent address in Leeming Road at Telopea. The offender continued to sexually abuse L at this address in the same manner, by rubbing L's vagina while the accused and L were alone within the home.

4. ROS 5.

Count 4

14. In respect of Count 4, her Honour found the following facts: [5]

The facts for count 4 in this matter are that between 1 January 1998 and 30 December 1998, the offender and his wife hosted a dinner party at home with people from their Jehovah's Witness congregation. The offender sat next to L at the dining table. Whilst seated, the offender took hold of L's hand, placed it on to his penis on the outside of his pants under the dining table. The offender moved L's hand over his penis, forcing her to rub his penis and L could feel that he had an erection.

After dinner, L began clearing the dining table and went to the kitchen. The offender followed closely behind her. While alone in the kitchen he said to her, "I was trying to hide this", and showed her that he had an erection under his pants. He did not remove clothing. L felt ill and ran to her bedroom. She was 13 or 14 years old at the time of the offence.

From this incident onwards, L stood up to the accused, telling him, "No," as well as telling him that she had her period, in order to stop him from touching her.

5. ROS 5-6.

Count 5

15. In respect of Count 5, her Honour found the following facts: [6]

Count 5 in the indictment relates to an incident between 10 February 1997 and 30 December 1997. The offender would walk around the house naked. The victim T saw him doing this on numerous occasions. On one occasion, T was standing in the lounge room. The offender walked out of the bathroom in the lounge where T was standing. The offender was naked and he had an erection. The offender walked up to T and said, "It's pretty normal to walk around your house naked." Referring to his penis, he added, "It's pretty big, isn't it? It gets bigger with age. You can touch it if you want." T did not touch the offender. There was wrestling and nudity between the offender and T which subsided between the offender and T. At the time of this offence, T was aged 11 years.

6. ROS 6.

The circumstances leading to the applicant’s arrest

16. Having made the findings set out above, her Honour referred to the circumstances leading up to the applicant’s arrest.

17. LC did not report the abuse by the applicant until May 2017. After she did so, police obtained a surveillance warrant and recorded a telephone call between her and the applicant. During that conversation, they spoke about the period of time over which the applicant had been living with LC and the sexual abuse that had occurred during that time. When LC told the applicant she was ringing about her childhood and wanted to talk to him about the fact that he had sexually abused her, the applicant said: [7]

"You've caught me by surprise here. Well, you haven't caught me by surprise, in a way, it had to be addressed. I had weaknesses and I didn't have control over my emotions and who I was, perhaps not being loved as a child and then you became a victim of that."

7. ROS 8.

18. When the conversation continued the applicant was asked if he remembered about what used to happen at the first house in Telopea where he had lived with LC. He responded: [8]

"When I came to say good night, I used to touch you at night time. Yes, that used to happen, not every night, but it used to happen regularly. When we went swimming, I used to touch you as well. There was no sex, but there was touching on my part and you have no blame for that, you were a young person and I was a responsible adult. Honestly, all I remember was on one occasion I got you to touch me. L, it's not your fault. I've lived with this and the knowledge of this every day and I've often wondered how you've gone."

8. ROS 8.

19. In an apparent attempt to explain to LC why he had committed the offences, the applicant said: [9]

"In life sometimes people take drugs, they drink alcohol to get high, they do things to sort of mask an unhappiness that's deep inside. I didn't know how to take those things. I was never into alcohol and I never had access to drugs and when it comes to sex, (V) and I still had an active sex life. It wasn't like it wasn't happening, but I wanted more. I was unhappy and you were there and that was not fair. It hurts me to recount it. Plus not having the control of my libido and not being taught the right things, to respect women, to respect young people, I was never given that."

9. ROS 8.

20. On 16 April 2018 a second conversation between the applicant and LC was recorded in which the applicant made further admissions about his offending. [10]

    10. ROS 8.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

21. Her Honour found that as the stepfather of LC and TC, the applicant had abused his position of trust and authority, and that this was a matter of significant weight. [11] Her Honour also found that as young children in a family situation, both LC and TC were helpless, and had been living in a home where they ought to have felt safe and protected from harm. In these circumstances her Honour concluded that the fact that the offending was committed in their home was a circumstance of aggravation.

    11. ROS 9.

22. Her Honour briefly summarised the circumstances of each individual count before reaching the following conclusions as to objective seriousness: [12]

    12. ROS 10.

1. Count 1 – in the mid to high range;

2. Count 2 – at least in the mid-range;

3. Count 3 – in the high range;

4. Count 4 – below the mid-range;

5. Count 5 – within the mid-range.

THE APPLICANT’S SUBJECTIVE CASE

23. Tendered in the applicant's case before the sentencing judge was a report of Megan Godbee, forensic psychologist. Having noted that the applicant agreed with the facts of the offending as outlined, Ms Godbee reported:[13]

He presented with some distorted thinking about his behaviour, for example, stating that the reason he touched his stepdaughter was “to comfort her". [The applicant] also said that he “let her" touch his penis, and emphasized [sic] that he “only touched the outside" of his stepdaughter’s vagina. He acknowledged that his behaviour was entirely his responsibility, but also said that “she participated in it" and the blame laid [sic] with him for “allowing the situation". He suggested that his reason for the offending was because he was feeling low and touching his stepdaughter was arousing, which made him feel better. He denied using the offending, or memories of it, to achieve sexual gratification beyond feelings of arousal.

13. At [34].

24. Ms Godbee concluded that it appeared that the applicant had accepted responsibility for his behaviour, and that he had acknowledged that such behaviour was wrong. However, she also noted that he presented with “some minimisations and justifications", and concluded he had mixed insight into ways of reducing his risk of reoffending. [14]

    14. At [35].

25. Ms Godbee assessed the applicant as falling within the average level in terms of the risk of further sexual offending. [15] In reaching that conclusion, Ms Godbee cited a number of factors which in her view, had the capacity to increase the risk of the applicant sexually reoffending, namely that he:[16]

    15. At [39].

    16. At [41].

1. was in a position of psychological power over the victims in his role as their stepfather;

2. reported having a controlling relationship with the victim's mother and appeared to have engaged in controlling behaviour towards his stepson;

3. presented with minimisations and justifications for his offending behaviour;

4. had some difficulties with his self-awareness related to his mental health and relationship issues at the time of the offending although there were no significant current concerns about his insight; and

5. described a history of difficulties in intimate relationships.

26. Ms Godbee concluded: [17]

In the 20 years since his index offending, [the applicant] appears to have developed some protective factors but also continues to hold some distorted beliefs and place himself in risk-situations (such as coaching children's tennis). Positively, he appears to accept that he engaged in the abusive behaviour and that it was inappropriate. He also reported that he had developed more adaptive strategies to alleviate low mood and feelings of worthlessness.

It is recommended that [the applicant] engages in offence-specific treatment to assist him in developing and maintaining appropriate intimate relationships, identifying what contact with children is appropriate (and strategies to manage this with his daughters), challenging his distorted beliefs about victim blame and broadening his repertoire of adaptive coping strategies. Given the historical nature of his offending and his assessed level of risk, [the applicant] is unlikely to be prioritised for a group-based intervention program in custody. It is therefore recommended that he engages in individual psychological treatment with a Department of Corrections Psychologist, either in custody or in the community.

17. At [45]-[46].

27. Apart from two relatively minor corrections (neither of which is relevant for present purposes) the applicant confirmed the accuracy of the contents of Ms Godbee's report in his sworn evidence before the sentencing judge. [18] When asked about statements he had made to Ms Godbee in which he may have suggested that LC was in some way responsible for his offending, the applicant said: [19]

I definitely do not think that that is true, I am 100% responsible for what happened.

18. T7.17-T7.19.

19. T8.10-T8.11.

28. The applicant told her Honour that since being interviewed by Ms Godbee he had changed his thinking about his offending: [20]

Just my focus being a clarity on the responsibility, 100% responsibility on the adult. When I was thinking when I was in the interview with Ms Godbee, I was recalling days when [the victim] was not resisting or there was no push back from her and that does not excuse my behaviour because I was in a position of trust and authority and I abused that trust.

20. Commencing at T8.22.

29. The applicant also told her Honour that he felt “disgusted" about his offending, and acknowledged the hurt and disgust felt by the victims. [21] He also acknowledged the need to undertake treatment to improve his insight into his offending. [22] When asked what he would say to the victims if he had the opportunity to speak with them, the applicant said: [23]

[…] I am extremely, very, very sorry for the events of the past and the impact that it has brought on your lives and I wish I could take back those years of that offending towards both of them, I can't and I would hope that they can continue in their lives – I don't know how to put that, just to – I'm just very sorry and just to be strong.

21. T8.33-T8.44.

22. T8.46-T9.1.

23. T9.45-T9.49.

30. In cross-examination, the applicant expressly acknowledged that LC was not a willing participant in any of his offending [24] and specifically accepted that she did not initiate any contact. [25] When it was suggested that some of his statements to Ms Godbee had indicated an attempt on his part to minimise his responsibility for the offending, the applicant said: [26]

That it’s possible that I might be trying to minimise, yes, that could be, and as I said to you, as I said before, this is been a part of a process for me to get clarity on my offending and my attitude towards my responsibility, it's not to cast blame on anyone else.

24. T11.12-T11.14.

25. T13.5-T13.8.

26. T13.28-T13.31.

31. In the course of her remarks on sentence, the sentencing judge summarised the report of Ms Godbee at considerable length. [27] On the whole of the evidence, her Honour accepted the applicant’s expressions of remorse and contrition were genuine and that he appeared to be sorry for what he had done. [28]

    27. ROS 11-17.

    28. ROS 18.

32. Her Honour made reference to testimonials which were tendered in the applicant’s case and which were generally supportive of the applicant and his prior good character. Her Honour found that the applicant had prior convictions for two matters in Western Australia which post-dated the present offending and concluded that in these circumstances, the applicant's criminal history did not disentitle him to leniency. [29] She found that the applicant's prospects of rehabilitation were guarded. [30]

    29. ROS 11.

    30. ROS 19.

33. Her Honour concluded that the applicant had engaged in a pattern of abuse over a four-year period. [31] Whilst accepting that some of the matters relating to his background which had been canvassed by Ms Godbee explained his conduct, her Honour concluded that such matters did not reduce the applicant’s moral culpability, and that Ms Godbee's report demonstrated that the applicant needed specific treatment which may only be available upon his release. Her Honour concluded that this was a proper basis for a finding of special circumstances. [32]

    31. ROS 19.

    32. ROS 19.

34. Her Honour noted that there had been a delay of about 20 years between the time of the offending and the time at which the applicant was charged. During that time the applicant had made admissions to those involved in the administration of a church of which he was a member, but those admissions were never acted upon. [33] Her Honour also found that the fact that the applicant lacked the support of friends and family meant that there would be an additional degree of hardship in serving his sentence. [34]

    33. ROS 19.

    34. ROS 20.

35. Finally, her Honour acknowledged that the offences on the Form 1 were themselves serious. [35] She concluded that considerations of general deterrence remained important, and that personal deterrence remained relevant along with the need for protection of the community. [36]

    35. ROS 20.

    36. ROS 20.

evidence sought to be relied upon by the applicant

36. Before this Court, the applicant sought to rely upon documentary evidence, in the form of statutory declarations, an affidavit, and associated documents which were not before the sentencing judge. The majority of that material attempted to address observations made by her Honour in the course of sentencing the applicant about aspects of the report of Ms Godbee. The Crown objected to that material but in the event that the Court admitted it, sought to rely upon affidavit material in reply.

37. At the time of hearing the application for leave to appeal, the Court indicated to the applicant that it was not prepared to admit this additional material into evidence. The entirety of the material sought to be relied upon was obviously known to the applicant at the time of his sentence. It stemmed directly from the contents of the report of Ms Godbee which was tendered in his case. In those circumstances, the grounds for admission of the evidence were not established. [37]

    37. R v Goodwin (1990) 51 A Crim R 328.

THE GROUNDS OF APPEAL

38. In addressing the grounds of appeal, and without intending any criticism whatsoever, it is necessary to note that the applicant was self-represented before this Court. It is also apparent that he drafted, without legal assistance, the grounds of appeal upon which he relies, and the written submissions in support of them. The grounds of appeal are in the following terms:

Error in assessment of special circumstances and rehabilitation. Her Honour erred in her contradictory remarks regarding rehabilitation. Her Honour erred in allowing an expert's report to confirm bias in sentencing.

39. Obviously, grounds pleaded in such terms lack clarity. However, having regard to the written and oral submissions advanced by the applicant before this Court, the application for leave to appeal proceeded upon the grounds set out below.

GROUND 1 – THE SENTENCING JUDGE ERRED IN HER ASSESSMENT OF SPECIAL CIRCUMSTANCES

The reasons of the sentencing judge

40. In the course of assessing the offender's moral culpability, the sentencing judge said: [38]

The matters raised in Ms Godbee's report about the offender's up bringing [sic] resulting in controlling attitudes to women and an authoritarian approach do, to some extent, explain some of the offender's conduct, but cannot reduce the moral culpability. Ms Godbee's report demonstrates that the offender needs offence specific treatment which may only be available on his release. This is a basis for finding special circumstances.

38. ROS 19.

41. Subsequently, her Honour said: [39]

I find special circumstances in this matter. The offender would benefit from an extended period of supervision to ensure that he has the opportunity to engage in offence specific treatment while else [sic] in the community.

39. ROS 20-21.

42. The aggregate sentence imposed on the applicant reflected a ratio of 70% between the head sentence and the non-parole period, as opposed to the statutory ratio of 75%. The reduction in the non-parole period was one of three months.

Submissions of the applicant

43. The applicant submitted that the aggregate sentence imposed had resulted “in a less than expected favourable outcome in time off [his] non-parole period" and that this reflected error on the part of the sentencing judge. He submitted that the sole purpose of a finding of special circumstances is to expedite an offender's rehabilitation, and that such a purpose is best served by a “notable portion of time" being deducted from the non-parole period. He submitted that the sentence imposed by her Honour reflected little in the way of any such reduction, and brought no advantage to him in light of the fact that he would not be able to enter any relevant educational program until at least six months after his earliest possible release date. The applicant submitted that this rendered her Honour's finding of special circumstances “practically ineffective and of little to no benefit”.

44. Finally, the applicant submitted that the conclusions reached by the sentencing judge as to the genuineness of his contrition and remorse were not reflected in her Honour's adjustment of the statutory ratio following her finding of special circumstances.

Submissions of the Crown

45. The Crown submitted that having found special circumstances, the extent of any adjustment to the statutory ratio was a determination to be made in the exercise of the discretion of the sentencing judge. It was submitted that the adjustment made in the present case was open to her Honour, and was obviously based upon the matters to which her Honour had referred in her reasons, including her assessment of the applicant’s prospects of rehabilitation and his risk of reoffending. It was the Crown's submission that in all of these circumstances there had been no error demonstrated.

Consideration

46. In Park v R [40] R A Hulme J made the following observations regarding a finding of special circumstances:

[161] A finding of special circumstances is a discretionary finding of fact in respect of which this Court is slow to intervene: R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at [103]; R v Cramp [2004] NSWCCA 264 at [31]; Clarke v R [2009] NSWCCA 49 at [13]; Quayle v R [2010] NSWCCA 16 at [41].

[162] It was observed in Caristo v R [2011] NSWCCA 7 at [33] that this Court is more likely to intervene on a ground asserting insufficient weight was given to a finding of special circumstances where there has been inadvertence or miscalculation that led to a non-parole period exceeding, and the parole period being less than, that which was intended by the finding of special circumstances.

40. [2020] NSWCCA 90 at [161]-[162].

47. A finding of special circumstances involves the exercise of a discretion. Providing a sentencing judge gives reasons for such a finding, and providing that such reasons are available on the evidence, no error will be established. [41] Such a discretionary finding is a matter in respect of which this Court will be slow to intervene. [42] As a practical matter, there are unlikely to be many cases in which the Court will intervene unless the non-parole period is found to be manifestly inadequate or manifestly excessive. [43] The starting point for determining whether there has been an error in the exercise of the discretion to find special circumstances is to ascertain what can be gleaned, in terms of the intention of the sentencing judge, from the sentencing remarks. [44]

    41. Bell v R [2019] NSWCCA 271 at [2] per Hoeben CJ at CL.

    42. Caristo v R [2011] NSWCCA 7 at [28] citing Jiang v R [2010] NSWCCA 277 at [83].

    43. Caristo at [29] citing R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp [2004] NSWCCA 264 at [36].

    44. Maglis v R [2010] NSWCCA 247 at [24] per Howie AJ.

48. In the present case, it is evident from what her Honour said that her finding of special circumstances was based upon the opinion of Ms Godbee that there was a need for the applicant to undertake specific rehabilitative treatment. [45] Although the nature of the treatment which was recommended that the applicant undertake was not further explained, this was not a case in which the applicant had a long standing history of offending which required him to address a number of matters related to his rehabilitation, nor was it a case in which there was evidence of a lengthy and complicated rehabilitation plan having been devised for him which would need to be administered over a long period of time. [46] The inference to be drawn is that any treatment the applicant might undergo is limited.

    45. ROS 19.

    46. Cf. Gumbleron v R [2017] NSWCCA 314 at [10].

49. Moreover, and contrary to the applicant’s submission, there was no evidence before her Honour that the applicant would not be able to enter any relevant program until at least six months after his earliest possible release date. The highest that Ms Godbee put it in her report was that given the historical nature of his offending and his assessed level of risk, the applicant was unlikely to be prioritised for a group-based intervention program in custody. [47]

    47. At [46].

50. In these circumstances her Honour’s finding does not bespeak error. It is wholly consistent with the evidence, as well as with the fact that a finding of special circumstances is directed towards assisting an offender’s rehabilitation and reintegration into the community. It is evident from what her Honour said that she had those matters firmly in mind when she sentenced the applicant.

51. It is not to the point that the adjustment to the non-parole period was less favourable than the applicant had expected. The extent of any such adjustment is not determined according to an offender’s expectations. Whilst the reduction of 5% may have been modest, that does not lead to a conclusion that there was an error in the exercise of the discretion of the sentencing judge. Reading her Honour’s remarks as a whole, it is evident that this is what her Honour intended having regard to the evidence.

52. Finally, and contrary to the submission of the applicant, matters of contrition and remorse have little, if any, bearing on a finding of special circumstances.

53. For all of these reasons, this ground is not made out.

GROUND 2 – THE SENTENCING JUDGE ERRED IN HER ASSESSMENT OF THE APPLICANT’S PROSPECTS OF REHABILITATION

The reasons of the sentencing judge

54. In assessing the applicant's prospects of rehabilitation, the sentencing judge said the following: [48]

I find that the offender's prospects of rehabilitation are guarded. He has been assessed as an average risk of reoffending. His offending was a long time ago, but it was over a three-year period and the offender still has some cognitive distortions in relation to child sexual abuse. Hopefully, this will be addressed with offence specific treatment which he has accepted as being needed. I am unable to find that he is unlikely to reoffend.

48. ROS 19.

55. Her Honour then said: [49]

In this matter, there has been a delay of about 20 years. The offender made admissions to his church which were never acted upon. The offender did experience stress, seeing reports of the Royal Commission investigations in 2015, but he also had the stress of his second marriage failure at that time and he addressed both with two counselling sessions. Through the period of delay, the offender has not reoffended which enhances his prospects of rehabilitation.

49. ROS 19.

Submissions of the applicant

56. A number of the submissions in support of this ground were based upon the additional evidence which the Court refused to admit. Such matters aside, the grounds of appeal asserted that her Honour had made contradictory statements when assessing the applicant's prospects of rehabilitation. It is to be inferred that such statements stem from those passages of her Honour’s sentencing remarks set out above.

Submissions of the respondent

57. The Crown submitted that her Honour's finding as to the applicant's prospects of rehabilitation was inextricably linked to an assessment of his risk of reoffending, and that the level of such risk was, in turn, dependent upon the applicant successfully undergoing and completing rehabilitative courses.

58. It was the Crown’s submission that in these circumstances no error had been made by her Honour in her assessment.

Consideration

59. The applicant's principal complaint appears to be that statements made by her Honour in the course of making her assessment of his prospects of rehabilitation were contradictory. Although not specifically stated, it is to be assumed that in advancing that submission, the applicant was referring to her Honour's conclusion that his prospects of rehabilitation were “guarded”, [50] which was followed by the conclusion that the fact that the applicant had not reoffended in the 20 year period between his offending and his arrest “enhanced” his prospects of rehabilitation. [51]

    50. ROS 19.

    51. ROS 20.

60. In my view, when the sentencing remarks are read as a whole there is no inconsistency in these two conclusions. Although her Honour found that the applicant's prospects of rehabilitation were enhanced by the fact that he had not reoffended, she took the view that the nature of his offending, the assessment of his risk of reoffending, and the existence of cognitive distortions in relation to child sexual abuse, all pointed to a guarded assessment. It is also evident, consistent with that conclusion, that her Honour took the view that the applicant's successful rehabilitation was dependent, in large measure, upon receiving “offence specific treatment”.

61. In these circumstances, this ground is not made out.

GROUND 3 – THE SENTENCING JUDGE ERRED IN ALLOWING AN EXPERT'S REPORT TO CONFIRM BIAS IN SENTENCING

Submissions of the applicant

62. The gravamen of the applicant’s complaint under this ground appeared to be that there were a number of factors arising from Ms Godbee’s report which were not the subject of any evidence before the sentencing judge, and that if such “context and facts" had been considered by her Honour “it would have assisted in extinguishing bias in sentencing". He submitted that in these circumstances the sentencing judge had erred by allowing “bias” to result in little weight being given to various subjective factors.

63. All of these submissions were based largely upon the additional evidence which this Court refused to admit. To the extent that they were not, the applicant appeared to take some issue with the observation of the sentencing judge that he continued to hold distorted beliefs and place himself in high risk situations. [52] The latter was a reference to the fact that the applicant had become a tennis coach and was thus engaging with young children.

    52. ROS 17.

Submissions of the Crown

64. The Crown pointed out that the report of Ms Godbee was tendered in the applicant's case on sentence, and submitted that it had obviously been open to the applicant to adduce further evidence in relation to any of the matters contained in that report had he wished to do so. The Crown submitted that there was no evidence of any “bias” on the part of the sentencing judge.

Consideration

65. In my view this ground has no merit. As the Crown pointed out, the report of Ms Godbee was tendered in the applicant's case. It was open to the applicant to supplement the contents of the report in his oral evidence if he wished to do so.

66. There is certainly no evidence of any “bias” on the part of the sentencing judge. To the extent that the applicant's submissions suggested that her Honour had placed an inappropriate degree of weight on the report of Ms Godbee, there is nothing to suggest that this is so. Her Honour’s finding that the applicant continued to hold distorted beliefs and place himself in high risk situations such as becoming a children’s tennis coach was properly based upon the report of Ms Godbee.

67. For all of these reasons this ground is not made out.

ORDERS

68. In circumstances where the applicant was unrepresented, the Crown properly addressed the question of manifest excess of the sentence, even though no specific complaint was made by the applicant in this regard.

68. To the extent that any of the applicant’s submissions might be taken to amount to the proposition that his sentence was manifestly excessive, I am not persuaded that this is so. His offending was objectively serious, it occurred over a lengthy period of time, it manifested itself in a series of different ways, and it was aggravated by the fact that it involved a gross abuse of the applicant's position of trust towards two young victims in their own home.

69. Taking all of these factors into account, the sentence imposed was well within the range of discretion available to the sentencing judge.

70. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Endnotes

Decision last updated: 22 July 2020