AG v R

[2016] NSWCCA 102

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	AG v R [2016] NSWCCA 102
Hearing dates:	6 April 2016
Decision date:	02 June 2016
Before:	Basten JA at [1]; McCallum J at [20]; Davies J at [21]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentencing – aggravated indecent assault and aggravated sexual intercourse without consent – victim was applicant’s eldest daughter – victim aged between 11 and 13 during offences – Ellis discount – disclosure by applicant of aspects of offending not complained of by victim – remorse undermined by victim-blaming – victim impact statements – how used by sentencing judge – whether sentence manifestly excessive – aggregate sentence – use of statistics – special circumstances found – adjustment of ratio
Legislation Cited:	Crimes Act 1900 (NSW), ss 61J, 61M Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 26, 30, 44; Pt 3, Div 2
Cases Cited:	Clarke v R [2009] NSWCCA 49 House v The King (1936) 55 CLR 499 Knight v R [2015] NSWCCA 222 Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mitreski v R [2015] NSWCCA 137 Mulato v R [2006] NSWCCA 282 R v Aguirre [2010] NSWCCA 115 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Ellis (1986) 6 NSWLR 603 R v Niketic [2002] NSWCCA 425 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Slack [2004] NSWCCA 128 R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 Regina v AD [2005] NSWCCA 208 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 The Queen v De Simoni (1981) 147 CLR 383 Tweedie v R [2015] NSWCCA 71
Category:	Principal judgment
Parties:	AG (Applicant) Crown (Respondent)
Representation:	Counsel: G Little (Applicant) S Dowling SC (Crown)   Solicitors: Grays Legal (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2014/41402
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 20 November 2014 Before: Phegan ADCJ File Number(s): 2014/41402

Judgment

1. BASTEN JA: The applicant sought leave to appeal against an aggregate sentence imposed on him by the District Court at Campbelltown (Phegan ADCJ) with respect to one count of indecent assault and three of sexual intercourse involving his young daughter. The details are set out by Davies J. I agree that the applicant should have leave to appeal but that the appeal should be dismissed, for the reasons given by Davies J and for the following further reasons.

Circumstance of aggravation

2. The first charge against the applicant involved an assault involving an act of indecency in circumstances of aggravation, contrary to s 61M(1) of the Crimes Act 1900 (NSW). For the purposes of that count, the relevant circumstance of aggravation was that the victim was “under the authority of” the applicant at the time of the offence. [1]

   1. Crimes Act, s 61M(3)(c).

3. The other three charges involved sexual intercourse without consent in circumstances of aggravation, contrary to s 61J(1) of the Crimes Act. The various circumstances of aggravation for the purposes of that provision include not only the victim being under the authority of the offender, but the victim being under the age of 16 years. It was the latter (under age) circumstance which was relied upon as the circumstance of aggravation in each charge under that provision.

4. The complaint raised by the applicant was that, in considering the objective gravity of the s 61J(1) offences, the sentencing judge took into account as an aggravating factor, pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), the fact that the victim was under the authority of the applicant. Such a course, it was submitted, involved sentencing the applicant for an offence with which he had not been charged, in contravention of the principle established in The Queen v De Simoni. [2] There are three reasons why that proposition cannot be accepted. The first is a matter of authority; the other two explain why the authority is correct.

   2. (1981) 147 CLR 383.

5. In relation to the question of authority, as pointed out by counsel for the Director, this issue was addressed in Regina v AD [3] where Howie J stated (with the agreement of Studdert and Latham JJ):

“Although the only circumstance of aggravation alleged in the charge was that the complainant was under the age of 15 years, the Judge was entitled, if not required, to take into account any other matter of aggravation present. … There is only one offence provided under s 61J and the Crown has only to allege and prove one circumstance of aggravation in order to make out the offence. There is no infringement of the De Simoni principle in the court taking into account other matters of aggravation because the offender is not being sentenced for a more serious offence than that charged.”

3. [2005] NSWCCA 208 at [22].

6. Secondly, the principle in De Simoni is not engaged by the circumstances of this case. De Simoni was charged with robbery; the circumstance of aggravation relied upon by the sentencing judge was the wounding of the victim in the course of the robbery. In accordance with the common law principle, the Criminal Code (WA) required that an offender not be punished for an aggravated offence where the circumstance of aggravation had not been included in the charge. Gibbs CJ (with whom Mason and Murphy JJ agreed) held that for the sentencing judge to take into account a circumstance of aggravation which had not been charged was to punish the offender “for an offence of which he has not been convicted.” [4] As the Chief Justice further explained: [5]

“However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.”

4.    De Simoni at 389.

5.    De Simoni at 392.

7. That principle is not engaged in the present case because where one circumstance of aggravation has been charged, the fact that others may be taken into account does not result in the offender being sentenced for a more serious offence, nor would the offence be different if a circumstance not included in the charge had been included in the charge. The offending is more serious, but the offence charged is not.

8. The third reason for rejecting the submission is that the sentencing principles to be applied are found in the Sentencing Procedure Act, and, relevantly for present purposes, s 21A(2). The potential aggravating factors identified there which are to be taken into account[6] include the offence being committed in the home of the victim,[7] the offence causing “substantial” emotional harm,[8] and the offender having abused “a position of trust or authority in relation to the victim.”[9] (It is also a circumstance of aggravation that the victim was vulnerable, because he or she was very young. [10] )

   6. Sentencing Procedure Act, s 21A(1).

   7. Section 21A(2)(eb).

   8. Section 21A(2)(g).

   9. Section 21A(2)(k).

   10. Section 21A(2)(l).

9. Section 21A(2) is subject to a qualification, namely that the court “is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.” That language should be understood to refer to the offence charged, not the offence as defined in the legislation.

10. It should also be noted that s 21A does not require the court to have regard to an aggravating factor “if it would be contrary to any Act or rule of law to do so.”[11] How that provision would operate in respect of a direct collision between the statute and another statutory provision or general law principle need not be considered in the present case because the only potentially relevant principle (the De Simoni principle) is not engaged.

    11. Section 21A(4).

11. As was noted in the course of argument, the applicant’s submission would entail at least the following proposition, namely that a circumstance of aggravation, which could have been pleaded as an element of the same offence but was not, cannot be taken into account as an additional aggravating factor in sentencing. However, an aggravating factor identified in s 21A(2) which could not have been the subject of a charge, can be taken into account in sentencing. As a matter of statutory construction, that submission should not be accepted. The judge did not err in taking into account the abuse of a position of trust or authority in relation to the charges under s 61J.

Adjustment of non-parole period

12. The applicant’s complaint in relation to the non-parole period was not that the sentencing judge did not adjust it, having made a finding of special circumstances, but that, given the nature of the finding, he did not adjust it sufficiently. Thus, it was submitted, he “reduced” the non-parole period from 75% to 66.7% of the full term of the sentence.

13. Although it is common to treat the statutory ratio as requiring that the non-parole period (being the period of mandatory custody) should be 75% of the sentence, absent a finding of special circumstances, that is not what the statute says. What it requires is that the balance of the term not exceed one-third of the non-parole period, absent a finding of special circumstances. [12] It is well-established that this provision does not require that the non-parole period be fixed and that the balance of term be adjusted according to whether special circumstances are found or not. It is accepted that sentencing may be undertaken as a one-step process, with the practical consequence that an appropriate sentence is considered and, where special circumstances are found, a non-parole period is imposed which may be less than that which would otherwise have been imposed, with the consequence permitted by s 44(2), namely that the balance of term exceeds one-third of the non-parole period. None of this is in issue, except that the submission that an insufficient reduction had been provided in the non-parole period depended upon a comparison of the proportions which the non-parole period bore to the overall sentence, before and after reduction. Thus, the reduction from 75% to 66.7% was seen to be a reduction of only 8.3%.

    12. Sentencing Procedure Act, s 44(2).

14. This reduction was not in practical terms insignificant; it amounted to a non-parole period which was six months shorter than it would otherwise have been. However, the variation is properly assessed by reference to the statutory proportion. Thus, the statutory ratio would have resulted in a balance of term of 18 months, which has been increased by six months or 33.3%. That is not an insignificant increase.

15. There are, as Davies J explains, good reasons why this Court should not intervene in the exercise of the discretionary power to increase the proportion of the sentence available to be served on parole. However, it is misleading to diminish the effect of the variation by adopting a wrong comparison.

Victim impact statement

16. The applicant challenged the use made by the sentencing judge of the victim impact statement prepared by the mother. The gravamen of the challenge was that the sentencing judge preferred the statement of the mother over that of the primary victim, namely her 13-year-old (at the time of sentencing) daughter. As Davies J explains, that complaint should be rejected because there was no inconsistency. The mother explained matters from the perspective of an adult and a parent, in ways which, it may be accepted, fairly identified the impact of the offending on the victim, and in a manner which the daughter would not have been able to identify or express.

17. The availability of a victim impact statement on a sentencing hearing is established by statute. [13] Nevertheless, the status of such material cannot readily be characterised. It is not in the ordinary sense evidence, not being presented in a formal way on oath or affirmation. In that respect, it bears some comparison with the unsworn statement permitted to an accused person and regularly relied upon in past times. However, the victim impact statement stands on the other side of the proceeding; to the extent that it may form a basis for concluding that the effects on the victim were more serious than might otherwise have been supposed, that would constitute an aggravating factor, which, in the ordinary course, should be proved beyond reasonable doubt.

    13. Sentencing Procedure Act, Pt 3, Div 2 (ss 26-30A).

18. There was no challenge to the provision of the mother’s statement to the Court. However, there may be some doubt as to who can give a victim impact statement, where the primary victim has survived and is not “incapable of providing information for” such a statement. [14] There is no provision which expressly requires that the primary victim provide the statement; further, the question of incapacity may be relative, so that it is open, as in this case, for both the primary victim and a person having parental responsibility, to give statements. These issues did not arise in the present case.

    14. Sentencing Procedure Act, s 26 and s 30(2).

19. Both the mother’s statement and the victim’s statement referred to the effect of the offences on the family. In a sense, it may be impossible to impose a strict demarcation between the effect on the victim and the effect on the family, because the latter will undoubtedly have repercussions for the victim. Nevertheless, the statement should be limited to “any personal harm suffered by the victim as a direct result of the offence”. [15] Wherever possible, that limitation should be respected. Although there is no suggestion that the sentencing judge inappropriately took into account material which should not have been in the statements, there was material in each statement which might have been seen to breach this constraint.

    15. Sentencing Procedure Act, s 26, victim impact statement (a).

20. McCALLUM J:   I agree with Davies J.

21. DAVIES J:   The applicant pleaded guilty to four offences as follows:

Count 1:   Aggravated indecent assault. The maximum penalty is seven years’ imprisonment.

Counts 2-4:   Aggravated sexual intercourse without consent. The maximum penalty is 20 years’ imprisonment and there is a standard non-parole period of ten years.

22. The applicant was sentenced by Acting Judge Phegan in the District Court at Campbelltown on 20 November 2014 to an aggregate sentence consisting of a non-parole period of four years commencing 9 February 2014 and expiring 8 February 2018 with an additional term of two years expiring 8 February 2020.

23. The indicative sentences were as follows:

Count 1:   A fixed term of 12 months.

Counts 2-4:   In each case a non-parole period of two years with an additional term of one year.

24. The applicant seeks leave to appeal on the following grounds:

1.   The sentence imposed was manifestly excessive.

2.   In taking insufficient account of the extent to which the appellants (sic) admissions founded the case against him

3.   As part of ground 2 failed to give sufficient weight to the penitence exhibited in the nature of the confession providing evidence not available to the prosecution, the early plea of guilty before the Magistrate adhered to in the District Court obviating the need for the complainant giving evidence.

4.   In giving too much emphasis to the victim impact statement of MG over the victim impact statement of the main victim AG when there was no evidentiary basis to accept one over the other, both being unsworn and capable of being consistent with each other.

5. In failing to give a lower non-parole period than four years having found special circumstances, the effective difference of the 2 year additional term being so close to the one third referred to in s 44(2) of the Crimes (Sentencing Procedure) Act between not exceeding the one third proportion for the additional term, the sentence fails to provide an effective vehicle for rehabilitation.

6.   In finding that it was "well beyond the lowest end of the scale of objective seriousness" and "certainly close to the mid range and that would be the starting point"

The facts of the offending

25. The victim of the offending was the applicant’s eldest daughter AB who was born on 28 January 2001. At the time of the offending constituted by counts 1 and 2 the victim was aged 11 years. At the time of the offending constituted by count 3 she was aged 11 or 12 years (the date of the offending is uncertain). At the time of the offending constituted by count 4 she was aged 13 years.

26. The first time the applicant touched AB sexually was when she was in Year 5 in 2012 when she was 11 years of age. She was in her bedroom and after she was in bed under the blanket the applicant came into the room. He got into bed with her and touched her using a grabbing action on her vagina on the outside of her clothing. She asked him what he was doing and he said nothing at which point her brother CD walked in. AB told the applicant to do the same thing to CD but he refused and told her to say nothing else about it. This act was Count 1.

27. The applicant admitted to the physical acts described and agreed that the first time anything of a sexual nature occurred between them was in August or September 2012 when he touched AB’s vagina outside her underpants. According to his version of events, however, she had complained of an itchy stomach and asked him to rub it and then moved his hand between her legs. He said that at that point he wanted to get out of the bed and she commented that his heart was beating hard. He said he tried to get away but she kept calling him into the shower and asking him for hugs. He said he told her he could not continue or he would end up in gaol at which, according to his account, AB assured him that she was not going to tell anybody.

28. In the same week as the incident involved in the first count AB was in bed when the applicant came into the room and kissed her goodnight. He reached down and touched her vagina. She asked him what he was doing, he said nothing and left the room. AB did not allege that any penetration occurred and the Crown case on that element of the offence was based wholly on the applicant’s own subsequent admission. This constituted Count 2. The element of aggravation in the offence was the age of AB at the time.

29. It was about this time that AB commenced sexual education at school and because of this she told police she knew what had been occurring was wrong but did not have the courage to report it to anyone. As in the case of the first offence the applicant made admissions to the physical acts. In the applicant’s version of the facts there was a degree of penetration which he described as no more than half a fingernail. According to the applicant AB called him into her bed and told him to rub her under her underpants. He said that it became too much for him, her constant calling him into her bedroom.

30. The third count, the second of the aggravated sexual intercourse without consent, occurred at the beginning of 2013 when AB’s mother FG went into hospital to have a lung removed and the applicant was left in charge of the three children. After he put the boys to bed he asked AB to sleep in his bed and on the Friday night, the first occasion when this occurred, nothing of a sexual nature happened.

31. On the Saturday night AB was again in the applicant’s bed, sleeping on her right side. She woke to feel her pants being pulled down and the applicant licking her vagina. She pulled her pants up and went to her own bedroom. She told police when giving an account of this occasion that she felt really scared, had a shower and put stuffed animals in her bed so it would appear as if she was sleeping in there but she went and actually slept in her brothers' room.

25. Again the applicant made admissions as to the physical acts that occurred but according to him AB climbed into his bed and this made him not feel right because his wife was in hospital. According to his account AB constantly moved closer to him. He admitted rubbing her vagina and she asked him to "kiss her bottom". He rolled away and faced the window but a few minutes later she rolled over and pushed his head towards her vagina and asked him to do it again. He admitted pulling her pants down and putting his tongue on her clitoris for "about a second".

26. Count 4 occurred in February of 2014 when AB was now 13 years of age. She was sleeping on her left side when the applicant entered the room. She awoke to feel the applicant’s hand inside the underwear which she was wearing at the time and his touching her breasts inside her pyjama top. She felt his body behind her and in bed underneath the covers trying to pull her closer to him. She felt something pushing against her from behind which she believes was the applicant’s "genitals". She shouted at him to get out.

27. Again, as in the case of the second count, AB did not make any allegation of penetration and therefore that ingredient of the offence is the result of the applicant’s own independent admission. He admitted to the physical acts including, on his account, digital penetration, again by "half a fingernail". He said that AB was in bed with her legs spread under the blanket. He touched her between the legs three or four times, leaving the room on each occasion. He said she was gyrating towards him and he admitted having an erection.

28. During the period of the offending the applicant told AB that he would physically hurt her, indicating the breaking of a neck and a closed fist, if she disclosed what was occurring.

29. AB told police that the above offences were what she could remember specifically but that sexual conduct of different types occurred "whenever he could". She said on occasions he grabbed her hands to put it towards his penis but she'd pull her hand back. She never saw or touched his penis. The applicant admitted there had been an occasion when she had put her hand on his groin on the outside of his clothing but then pulled her hand away.

30. When the applicant was asked how often events of a sexual nature occurred he said, "One or two times a month" and when he was asked whether it would happen a number of times a week he replied, "In the beginning, yeah", but he went on to say that over a period of six or seven months prior to his arrest those incidents had gotten further and further apart to the point where there was sometimes a month or more between events.

31. On 6 February 2014 AB told her mother FG “on nights dad is in my bed, he touched me down there” and pointed to her vagina. She said that it had been happening since the end of year 5. The applicant was confronted and denied it. The following night FG took the children to live with her brother.

32. In a telephone call between the applicant and FG on 8 February, the applicant said, “the perpetrator is the one crying. [AB] gets me to do certain things”. That same day the applicant spoke to FG and her brother. He made admissions as to the offences and said, “you’ve got to understand that I’m not the one to blame here. She is very attention seeking and wants me around all the time.” They told him that he had no alternative than reporting the matter to the police. The following day he went to the police station and told police that he had been sexually abusing his daughter.

Subjective factors

40. At the time of the offending the applicant was 48 to 49 years of age. AB was the eldest of three children from his second marriage. He had a daughter aged 20 years at the time of sentence from his first marriage.

41. The subjective information concerning the applicant came principally from a report from Dr Richard Furst, a forensic psychiatrist. The applicant did not give evidence at the sentence hearing. Despite that fact, the sentencing judge said he could largely accept what Dr Furst recorded as the personal history given to him by the applicant.

42. The applicant told Dr Furst that he was subject to childhood sexual abuse when he was ten years of age at the hands of a neighbour, and he had been involved in an incestuous relationship with one of his sisters over a period of six to seven years. In relation to that matter his Honour said that he had reservations about accepting that the applicant was taken advantage of by his sister. In addition, the applicant claimed that his mother had sexually touched him when he was in his twenties.

43. There was also domestic violence and affairs being conducted by each of his parents. His Honour was quite prepared to accept that the applicant grew up in a dysfunctional domestic situation.

44. At a relatively early stage of his adult life he suffered from chronic low mood and low self-esteem. He had been in the hands of various psychiatrists for psychiatric treatment in the 1980s and 1990s. His first marriage was unstable although even at the time of his sentence he maintained a reasonably close relationship with his first wife and their daughter.

45. The applicant described his second wife as a person with explosive anger who he believes used him to come to Australia – she was a Filipino. The applicant said that his second wife was jealous and aggressive and as a consequence of this he stopped loving her years before the offending. His Honour accepted Dr Furst’s analysis of the applicant’s description of his second wife as showing his own narcissism.

46. Although the applicant had worked throughout most of his adult life he had financial difficulties in 2005 and then again after a business arrangement went wrong in 2010.

47. The sentencing judge noted that Dr Furst referred to the applicant indicating considerable remorse for what he had done, but his Honour did not say whether or not he accepted that remorse in the absence of evidence from the applicant.

48. Dr Furst diagnosed a major depressive disorder and a personality disorder, (narcissistic and borderline traits). He considered that the applicant needed to maintain psychiatric treatment and undertake further intervention with regard to sexual misconduct. Dr Furst thought that he had good prospects of being successfully rehabilitated if he participated in the treatment programs and psychiatric treatment.

49. Dr Furst did not think that the applicant had a paraphilia (disorder deviant sexual arousal/behaviour), with the offences being largely opportunistic, involving his daughter, and having no previous history of sexual offences.

Grounds of appeal

50. The applicant’s counsel submitted that grounds 2 to 6 were to some extent particulars of Ground 1 although they also needed to be considered as grounds of appeal themselves. Nevertheless, counsel accepted that it would not be sufficient for the appeal to be upheld that the applicant demonstrated error on any particular ground. In that regard, counsel also accepted that for those grounds error of a House v The King type would need to be demonstrated. It is convenient, therefore, to consider grounds 2 to 6 before considering Ground 1.

Grounds 2 and 3:   The applicant’s admissions, and evidence not available to the prosecution

51. These two grounds were dealt with together and might be thought to concern an Ellis discount (R v Ellis (1986) 6 NSWLR 603) although that was not articulated in the applicant’s submissions.

52. The applicant submitted that because he was given a full 25% reduction for the early plea the starting point was an eight year head sentence with a five year four month non-parole period. The applicant submitted that no reference was made by the sentencing judge to the fact that the applicant’s approach to the case meant not only that the complainant did not have to give evidence but that he was convicted of charges that could not, without his admissions, be proven against him and which were not the subject of complaint.

53. The Crown submitted that the terms in which these grounds were pleaded tacitly accept that the sentencing judge took account of the matters referred to. The Crown pointed out that the sentencing judge made specific reference to the voluntary attendance of the applicant at the police station and his admissions. The Crown drew attention to the authorities which say that no separate quantified discount should be given for an Ellis discount. The Crown submitted that the sentencing judge noted and commented on the issue of remorse. However, the remorse demonstrated by the admissions was undermined by the applicant’s blaming of the complainant for the offending conduct.

Ground 4:   Victim Impact Statement of the victim’s mother

54. The applicant made reference to the principles in R v Slack [2004] NSWCCA 128 where it was said that the material in an unsworn victim impact statement cannot be given substantial weight. The applicant acknowledged that his counsel at the sentence proceedings did not take objection to the mother’s statement but suggested that that was because his Honour gave no warning that he intended to prefer the mother’s statement over the real victim’s statement. That was a matter of procedural unfairness.

55. The applicant submitted that AB’s statement was insightful and powerful in showing how she felt, and that distinguished it from her mother’s reaction. In that regard the applicant submitted that the matter was compounded by the sentencing judge’s reference to a significant breakdown in the relationship between the applicant and his wife well before the offence and the negative matters referred to in relation to the wife. The applicant submitted that for the sentencing judge to accept the mother’s statement and dismiss AB’s statement and in doing so to find an aggravating factor was appellable error.

56. The applicant’s counsel expressly eschewed any submission that less account should have been taken of the mother’s statement because she might be regarded as being hostile towards the applicant.

57. The Crown submitted that the two victim impact statements were tendered and admitted without objection. No submissions were made that the use of the statements or either of them should be limited or that evidentiary weight given to them should be limited. The Crown submitted that the mother’s victim impact statement gave more sophisticated detail of the impact of the offending on AB but, in any event, it was not inconsistent with AB’s statement. Nevertheless, his Honour declined to find aggravation on the basis of the emotional harm caused.

58. The Crown submitted that Slack no longer represents the law in New South Wales, and made reference to what was said in R v Aguirre [2010] NSWCCA 115 at [75].

Ground 5:   Non-parole period

59. The applicant submitted that, notwithstanding his Honour found special circumstances, his Honour hardly varied the statutory ratio by reducing it to 66.7%. The applicant submitted that the non-parole period should have been reduced further so that there was effective addressing of rehabilitation within increased time for supervision in the community – a necessary matter in this type of case.

60. The Crown noted that there had been a variation of the statutory ratio to 66.7% following the sentencing judge’s finding of special circumstances. The Crown submitted that the extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge’s discretion. The sentencing judge was required to fix a non-parole period to ensure that the time the applicant spent in prison reflected all the circumstances of the offence including its objective seriousness and the need for general deterrence.

Ground 6:   Objective seriousness

61. The applicant submitted that inasmuch as offences under s 61J of the Crimes Act 1900 (NSW) (counts 2-4) encompassed a range of unacceptable behaviour such as full penile vaginal intercourse, anal intercourse, strenuous physical coercion, the infliction or threat of infliction of actual bodily harm, offending in company or where the victim had a serious physical or intellectual disability, and where it included children much younger than the victim, it was an error to suggest that the offending was in the mid-range. The applicant submitted that the short duration of digital penetration with no complaint subsequently from the victim meant that the objective seriousness could not be close to the mid-range.

62. The Crown made reference to the well-known principle that the assessment of objective seriousness is a discretionary exercise classically within the role of the sentencing judge, and referred in that regard to Mulato v R [2006] NSWCCA 282 at [37] and [46]. The Crown said that the matters to which the applicant referred as suggesting that the offence was in the lower range of objective seriousness were not the only considerations. A significant factor was the fact that the applicant was the biological father of the victim. Further, coercion need not be physical. In the present case threats against disclosure were made.

63. The applicant initially submitted in relation to this ground that the sentencing judge had contravened the De Simoni principle by regarding as an aggravating circumstance the fact that the victim was under the authority of the applicant when the offence under s 61J was charged with the aggravating circumstances being the victim’s age. When the Crown drew attention to what was said in R v AD [2005] NSWCCA 208 at [22] counsel for the applicant accepted that what was said in AD “removes my analysis altogether”. I understood by that statement that counsel was withdrawing his submission.

Ground 1:   Sentence manifestly excessive

64. The applicant made reference to what was said in Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at [25] and then drew attention to the JIRS statistics. The applicant accepted the limitation on the use of statistics. However, he pointed out that in the statistics for consecutive and non-consecutive terms 51% had a sentence of six years or less; for consecutive terms only 34% had terms of six years or less; and for the non-parole period for non-consecutive terms 68% had a parole period of four years or less.

65. The Crown submitted that Judicial Commission statistics offered no guidance about aggregate sentences, making reference to Knight v R [2015] NSWCCA 222 and Tweedie v R [2015] NSWCCA 71. The Crown submitted that the sentences could not be said to be manifestly excessive when regard was had to the maximum penalties for the offences, the standard non-parole period for the offences in counts 2 to 4, the objective seriousness and the lack of any mitigating features. The Crown noted the lack of any complaint about the accumulation of the sentences and submitted that the sentencing judge appropriately applied the principle of totality in circumstances where the offending took place on separate occasions.

Consideration

Grounds 2 and 3

66. His Honour made two specific references to the admissions by the applicant. He said (ROS 2):

On that same day the offender spoke with [his wife’s] brother and his wife and made admissions to the offences but said, "You've got to understand that I'm not the one to blame here, she is very attention seeking and wants me around all the time". They told him that he had no alternative other than reporting the matter to the police. This, in fact, he did on the following evening at about 5.30pm when he attended Narellan Police Station and told the police that he had been sexually abusing his daughter. He was arrested and in an interview with police on 10 February made certain admissions which are included in the summary of the facts contained with regard to each count.

67. A little later his Honour said this (ROS 8):

There was also the element of self-reporting, that is, that it was the offender and not the victim who first went to the police although it was the Crown submission that this was only because it was in recognition of the inevitable, that is, that there had already been an indication that the matter would be taken to the police by the offender's brother-in-law, if nobody else. However, I accept what Mr Townsend had to say about that and that is there is no evidence sufficient to support the view that the only reason for self-reporting was the fear that it was going to be reported to the police anyway and therefore there is some measure of mitigation in the sense that it does reflect positively on the offender that he chose to take the matter to the police himself. And mostly importantly in that context, as I noted earlier, in his version of events it was he who revealed the element of digital penetration, for example, which had not been mentioned in the report given to the police by the victim.

68. Finally, his Honour said (ROS 16):

Finally, the plea of guilty. There is certainly no question that the plea was at the earliest stage and indeed was a consequence of what I have already noted was the offender's own initiative in going to the police and reporting these offences in the first instance. He is therefore entitled to the maximum reduction, and there was no opposition to this from the Crown, of 25%.

69. In Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 McHugh J said at [15]:

The statement in Ellis that "the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency" is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case.

70. Other authorities have said that there should not be a separate quantified discount in relation to such disclosure: Lewins v R [2007] NSWCCA 189 at [17] and R v Borkowski [2009] NSWCCA 102 at [32].

71. In my opinion, the passages in the Remarks to which I have referred show that the sentencing judge took into account the self-reporting and the admissions made by the applicant. The difficulty in the applicant’s submission is that a ground that alleges insufficient weight being given to a matter impliedly accepts that some weight was given to the matter. The extent of weight to be given to matters is a matter for the sentencing judge. It would be necessary to show error of the House v The King type. No such error was demonstrated nor was any sought to be demonstrated.

72. In circumstances where the sentencing judge made reference to the self-reporting, where a quantified discount is not to be given for an Ellis discount, and where there is nothing about the sentence which suggests no leniency was extended, ground 2 must fail.

73. In relation to remorse his Honour said (ROS 16):

That is more difficult to assess. It is more specific than the general prospect of rehabilitation and lack of offending and in this case I have to place on record the fact that the offender chose not to give evidence and therefore subject his remorse to any cross-examination. All I have in that regard therefore is what is the second-hand report of statements which he made to Dr Furst.

74. When his Honour pointed out at the sentencing hearing that the applicant had not given evidence, the applicant’s counsel said:

That is true. There is some authority for that proposition that your Honour is not required to give – is required to give what weight your Honour thinks is necessary or is appropriate to what I term, self-serving statements in expert reports made by offenders, but your Honour has to assess that in terms of what the evidence is, and how it is presented, and in what form it comes to your Honour. This is a direct transcript by a psychiatrist of what his (sic) man said to him and in that sense, I would invite your Honour to give it some weight indeed as an expression of remorse.

75. Where, as here, an offender chooses not to give evidence at the sentence proceedings, statements made to medical professionals must be given limited weight: R v Niketic [2002] NSWCCA 425 at [4]; R v Qutami [2001] NSWCCA 353 at [58]-[59]. All that the sentencing judge had in relation to remorse were untested statements in Dr Furst’s report and the fact that the applicant self-reported. An assessment of the applicant’s remorse had to be informed, on the other hand, by what was contained in the Agreed Statement of Facts where the applicant tended to place some responsibility on AB for what had happened.

76. I would reject ground 3.

Ground 4

77. This ground claims that the sentencing judge gave “too much emphasis” to the mother’s Victim Impact Statement. As with grounds 2 and 3, such a ground implicitly accepts that the sentencing judge had regard to the relevant evidence.

78. The Victim Impact Statement provided by the child was, as the sentencing judge noted, in the form of a number of short statements illustrated in each case by drawings done by the victim. His Honour went on to say:

Understandably that victim impact statement is not an articulate description of the impact of these offences on the victim and in that regard I rely much more on the statement of the mother [FG] …

79. Nothing was said by counsel for the applicant at the sentence hearing to suggest that his Honour should not give any weight or significant weight to the victim impact statement from FG. When no objection was taken to it there was no basis for his Honour not to give it appropriate emphasis. Self-evidently, it dealt more adequately and articulately with what AB was suffering and demonstrating in her behaviour. More significantly, it was not in any way inconsistent with AB’s statement.

80. His Honour did not regard the emotional harm suffered by AB as an aggravating factor. His Honour said (ROS 14):

I do not propose to add to what I have said about that already, there is absolutely no doubt in my mind that that applies [s 21A(2)(g)] but it is very much a consequence which is assumed as part of the offence itself and therefore while extremely serious, and in this particular case very substantial, it is not a matter which per se increases the sentence by way of aggravation over and above that which is in any case appropriate.

81. It is necessary for the applicant to show an error of the House v The King type. Such an error is not demonstrated by assertions of undue weight being given to some piece of evidence when there is evidence capable of supporting the Judge’s conclusion.

82. I would reject this ground.

Ground 5

83. His Honour found special circumstances. He said that it was the applicant’s first time in custody and he noted that experiences in custody of a sexual offender of this kind were likely to be harsher than they are for other offenders. Secondly, his Honour accepted what he described as a commitment from Dr Furst, that the applicant was committed to undertaking whatever treatment was available to him in order to assist with his psychiatric problems and also any form of counselling or other treatment with regard to sexual offending. Having done so, his Honour reduced the ratio to 66.6%.

84. In Clarke v R [2009] NSWCCA 49 McClellan CJ at CL (with whom James and Adams JJ agreed) said:

… This Court has explained on many occasions that the extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge’s discretion. In R v Cramp [2004] NSWCCA 264 at [31] Spigelman CJ said that an adjustment for special circumstances “raises so many matters of a discretionary character that this Court should be very slow to intervene.” Only if the non-parole period provided is manifestly inadequate or manifestly excessive should this Court intervene: Cramp at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19].

85. In Mitreski v R [2015] NSWCCA 137 the Court said:

[52] It cannot be doubted that a determination by a sentencing Judge to adjust the ratio of the non-parole period to the overall sentence from that prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act involves the exercise of making findings of fact, accompanied by an evaluative judgment to determine whether the factual circumstances found justify the lowering of the non-parole period below the statutory ratio: see R v Simpson [2001] NSWCCA 534 at [73]; (2001) 53 NSWLR 704; MD v R [2015] NSWCCA 37 at [40]; Allen v R [2015] NSWCCA 113 at [33].

[53] Section 44(1) of the Crimes (Sentencing Procedure) Act records that the non-parole period for the sentence is “… the minimum period for which the offender must be kept in detention in relation to the offence”. Spigelman CJ in R v Simpson at [56] noted that this express provision reinforced what the High Court of Australia had said in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, where, in the joint judgment, at 628 and 629, the Court said:

“… In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing Judge considers that the crime committed calls for such detention.”

[54]   And, further, at 629:

“… The legislative intention … [is] to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve, having regard to all of the circumstances of his offence.”

[55]   As Spigelman CJ went on to say, at [57] in Simpson:

“The reasoning in Power indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way – requiring specific justification for a lower proportion but not for a higher proportion – Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of ‘special circumstances’, must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole.”

[56]   The nature of the findings underpinning a finding, or rejection of a finding, of special circumstances are such that this Court is slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R [2011] NSWCCA 7 at [27]; Piscitelli v R [2013] NSWCCA 8 at [54].

[57]   As submitted by the Crown, the mere presence of circumstances which are capable of constituting special circumstances is not sufficient to compel the Court to make such a finding, thereby reducing the statutory ratio of the non-parole period to the whole sentence: R v Fidow [2004] NSWCCA 172 at [22].

[58]   It is also appropriate to note that at [59] in Simpson, Spigelman CJ rejected the proposition that the fixing of a non-parole period is a matter that is to be determined solely or primarily by reason of considerations of rehabilitation.

86. The sentencing judge was required to fix a non-parole period to ensure the time the applicant spent in prison reflected all of the circumstances of the offence and the offender including the objective seriousness and the need for general deterrence. His Honour adjusted the non-parole period to take account of the special circumstances. Unless the applicant can establish that the non-parole period was manifestly excessive this ground must fail.

Ground 6:   Objective seriousness

87. The assessment of the objective seriousness of an offence is a discretionary exercise which is classically within the role of the sentencing judge and which this Court would be slow to set aside: Mulato at [37] and [46]. It is necessary to show an error of the House v The King type.

88. The sentencing judge considered submissions made on behalf of the applicant that the offences fell towards the bottom end of the scale because of the small extent of physical interference, the absence of any physical threat and the element of self-reporting. His Honour then went on to say (ROS 9):

However, it is important to acknowledge that in an offence of this kind the physical aspect of the offence is only one part and in some respects, and I would suggest in this particular case, a minor part of the overall element of objective seriousness. Far more significant in this case is the psychological impact on the victim which was graphically described in the letter which was written and read out to the Court by her mother.

There is in that context not only the lasting impact of the offence of a profound psychological kind on the victim but also in the act itself a gross breach of trust on the part of the very person whom the victim could reasonably have expected to protect her against this kind of conduct rather than be the perpetrator of it. When one looks at those aspects of the offence it does elevate it to something well beyond the lowest end of the scale of objective seriousness and does take it, and I accept what the Crown submitted in this respect, certainly close to the mid-range and that would be the starting point from the point of view of determining the appropriate sentence that I would adopt.

89. Nothing is put to suggest any error of the House v The King type with regard to that assessment. The significance of the fact that the applicant was the victim’s biological father cannot be overstated. Elsewhere in his Remarks his Honour said (ROS 7):

He bore the overriding responsibility as an adult and a person in a position of ultimate trust with regard to his own daughter. Irrespective of her behaviour, his acts to which he himself has admitted were entirely indefensible.

90. The position was made worse by the fact that the applicant might first have been thought to have morally blackmailed the victim by telling her that she could not tell anybody because he would end up in gaol. Secondly, and perhaps more significantly, the applicant told the victim that if she disclosed what was occurring he would physically hurt her, indicating the breaking of a neck and a closed fist.

91. The finding as to objective seriousness was open to the sentencing judge. No error is disclosed. I would reject this ground of appeal.

Ground 1:   Sentence manifestly excessive

92. It is necessary for the applicant to demonstrate that the sentence was unreasonably or plainly unjust. The statistics relied upon by the applicant are a blunt tool. In any event, they offer no guidance about the propriety of an aggregate sentence: Knight v R [2015] NSWCCA 222 at 88; Tweedie v R [2015] NSWCCA 71 at [47].

93. Three of the counts to which the applicant pleaded guilty carried a 20 year maximum sentence and a standard non-parole period of ten years. It could not possibly be said that an aggregate sentence of a non-parole period of four years with an additional term of two years was unreasonable or plainly unjust for three such offences that occurred at different times in addition to an offence of aggravated indecent assault. Nor do the indicative sentences of a non-parole period of two years with an additional term of one year provide any basis for suggesting manifest excess in the overall sentence. I would reject this ground of appeal.

94. The orders I propose are:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

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Endnotes

Amendments

02 June 2016 - Paragraph 24 - names anonymised.

Decision last updated: 02 June 2016