AGF v The Queen

[2016] NSWCCA 236

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AGF v R [2016] NSWCCA 236
Hearing dates:	7 October 2016
Decision date:	21 October 2016
Before:	Meagher JA at [1]; Harrison J at [2]; R A Hulme J at [3]
Decision:	1. Time to file Notice of Application for Leave to Appeal extended to 1 June 2016. 2. Leave to appeal granted and appeal allowed. 3. Sentences imposed in the District Court on 6 November 2009 quashed and the following sentences imposed: Count 1 (2007/16340-036): imprisonment for a fixed term of 11 months commencing on 16 June 2008. Count 4 (2007/16340-038): imprisonment for a fixed term of imprisonment of 2 years 8 months commencing on 16 May 2009. Count 5 (2007/16340-005): imprisonment for a fixed term of 11 months commencing 16 May 2009. Counts 6 and 7 (2007/16340-039 & 040): on each, imprisonment for a fixed term of 2 years 8 months commencing 16 April 2010. Counts 8 and 9 (2007/16340-041 & 042): on each, imprisonment for a fixed term of 2 years 8 months commencing 16 March 2011. Count 10 (2007/16340-043): imprisonment for a fixed term of 3 years 7 months commencing 16 March 2011. Count 11 (2007/16340-016): imprisonment for a fixed term of 1 year 4 months commencing 16 February 2012. Count 13 (2007/16340-019) (and taking into account the Form 1 offence): imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 4 years 6 months. The sentence is to commence 16 December 2012. The non-parole period will expire on 15 June 2017 at which time the applicant will become eligible for release on parole. The total term will expire on 15 December 2021.
Catchwords:	CRIMINAL LAW – appeal against sentence – child sexual assault – significant delay – applicant sentenced on the basis that he had a prior conviction for child sexual assault – where prior conviction quashed on appeal after sentencing for present offences – prior conviction had no impact on sentence – judge not made aware of applicant’s assistance to authorities – new evidence of assistance received – assistance worthy of reduction in sentence – applicant re-sentenced – appeal allowed
Legislation Cited:	Crimes Act 1900 (NSW) ss 61, 61M(1), 61O(1), 66C(2), 66D, 61J Crimes (Sentencing Procedure) Act 1999 (NSW) ss 23, 44 Criminal Code (Cth) s 474.19
Cases Cited:	Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 Many v R (1990) 51 A Crim R 54 R v Cartwright (1989) 17 NSWLR 243
Category:	Principal judgment
Parties:	AGF (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Boulten SC (Applicant) Ms B Baker (Crown)   Solicitors: William O'Brien & Ross Hudson Solicitors Solicitor for Public Prosecutions
File Number(s):	2007/16340
Decision under appeal	Court or tribunal: District Court Date of Decision: 6 November 2009

Judgment

1. MEAGHER JA: I agree with R A Hulme J and the orders he proposes.

2. HARRISON J: I agree with R A Hulme J.

3. R A HULME J: AGF ("the applicant") applies for leave to appeal against a sentence imposed upon him in the District Court on 6 November 2009. The applicant cannot be identified for reasons which will become apparent; hence the pseudonym.

4. The applicant was found guilty by a jury of a number of offences and her Honour imposed a total effective sentence of imprisonment for 15 years with a non-parole period of 10 years. The non-parole period expires on 15 June 2018.

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

1   The sentencing of the applicant miscarried because her Honour was not made aware of the manner in which the applicant had assisted the authorities.

2   The sentencing of the applicant miscarried because her Honour dealt with the applicant on the basis that he had previously been convicted of a child sexual assault offence.

6. Given that the proposed grounds do not assert any error on behalf of the sentencing judge it is unnecessary to say anything for the moment about the facts concerning the offences, the applicant's subjective case or her Honour's reasoning and assessment of sentence.

History

7. The matter is the subject of a rather complex procedural history but I will only refer to so much of it as is presently pertinent. To maintain the applicant's anonymity I will refrain from providing a citation of some other cases in this Court which form part the history.

8. The applicant was tried in early 2009 on an indictment alleging a total of 13 sexual offences and 1 assault offence against his niece. The jury returned verdicts of guilty in respect of 10 of the offences. They occurred between 1997 and 2003 when the complainant was aged from 12 to 18.

9. When the applicant was sentenced later in 2009 there was no evidence brought forward about him having provided assistance to authorities.

10. The applicant appealed against his conviction but not against his sentence. Heard at the same time as that appeal was an appeal against the severity of a sentence imposed in separate proceedings for an offence of assault concerning the same victim. The Court dismissed the appeal against conviction but allowed the appeal against the assault sentence. The reduced sentence of 3 months that the Court imposed was completely subsumed within the sentences imposed in the primary proceedings so nothing more needs to be said about it.

11. The applicant filed a notice of appeal against sentence and an application for an extension of time on 1 June 2016. This was some 4 years after his conviction appeal had been determined and 7 years after he had been sentenced.

Ground 1 - miscarriage of justice because of the absence of evidence of assistance to authorities

Explanation for not adducing the evidence in the sentence proceedings

12. Senior counsel's advice was sought in 2014 as to the merits of an appeal against sentence but counsel was not briefed with information as to the applicant's assistance to authorities. When counsel was advised of it, sometime in the latter half of 2014, he requested that inquiries be made with the police officer in charge of the case and with the applicant's previous lawyers, both at sentence and on the conviction appeal. The officer confirmed that assistance had been provided. The applicant's previous legal representatives all provided affidavits as to their knowledge of it or otherwise.

13. The solicitor and barrister who appeared in the trial and sentence proceedings provided affidavits indicating that they were unaware that the applicant had provided assistance and said that if they had been aware, it would have been raised during the sentence proceedings.

14. The solicitor and barrister who represented the applicant in the conviction appeal indicated in their affidavits that the applicant had said something about having provided assistance. The filing of an appeal against sentence was contemplated but no further information was forthcoming and nothing happened.

15. The applicant swore an affidavit on 8 April 2016. He said that he did not tell his legal representatives in the District Court proceedings that he had provided assistance but he told his solicitor after, and possibly before, the hearing of the conviction appeal in this Court. He said that he had provided information to a named police officer prior to his trial. He said that he did not bring this to the attention of his legal representatives for a number of reasons which I paraphrase and summarise as follows:

1. He feared reprisals against himself and his family because he was an informant for the police, particularly because a suppression order regarding his identity had been lifted after his trial.

2. He had received a death threat from a particular inmate. He acknowledged that this was because of the nature of his charges but said that he feared without the suppression order in place it would become common knowledge among other inmates that he was a police informer.

3. He knew the person about whom he had given information was a suspect in two murders and believed that he had links with an outlaw motorcycle gang. Other inmates also had such links and this added to his fears of reprisals.

4. He did not know until after his conviction appeal about the confidentiality with which matters of assistance may be dealt with in sentence proceedings.

16. The applicant also claimed that he did not provide assistance in order to obtain a benefit for himself. He said that he did so "out of my sense of right and wrong and my strong moral views against the manufacture and supply of illicit drugs".

17. The Court was informed at the hearing of the application that a police officer, at the request of the applicant's wife, had provided an affidavit setting out the applicant's assistance after the hearing of the conviction appeal four years ago. The lawyers on both sides of the record at the time were completely unaware of this. The officer apparently sent it directly to the associate to the presiding judge. What became of it is a mystery. It may be inferred, however, that at least by sometime in 2012 the applicant had become aware of the relevance of his assistance to the assessment of sentence and of the confidentiality with which such matters may be dealt with.

18. Mr Boulten SC accepted that there were some aspects of this history that were "unacceptable". He also accepted that the delay in the issue being raised counted against an extension of time being granted but contended that if the Court found that the assistance was of some substance then intervention was warranted in order to repair a miscarriage of justice.

The assistance

19. There is an obvious need to be circumspect about the nature of the assistance provided by the applicant. It is enough for present purposes to say that there were three components. The first involved the applicant providing information about very serious criminal activity by a person notorious for his involvement in serious, including violent, crime. In conjunction with information police obtained from a completely separate source it led to a police investigation being successful to the extent that the notorious person was charged with 17 offences, some of considerable seriousness. He ultimately received a sentence of imprisonment. The assistance the applicant provided in relation to this matter did not extend to him making a statement or offering to give evidence.

20. The second aspect was that the applicant provided information to police about organised crime activity in a certain area. The third is that he provided information about the criminal activities of a prison inmate.

Value of the assistance

21. As to the value of the applicant's assistance in relation to the first matter, his information on its own would not have been sufficient to bring about the success of the police investigation whereas the information from the other source would have been. It is of significance, however, that the validity of the applicant's information was confirmed by that from the other source and by the successful outcome of the investigation and prosecution.

22. In terms of the matters required to be considered by s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the assistance was reasonably significant and it could be regarded as useful, truthful, reliable and timely. Having regard to the type of person the information concerned, it had the potential to expose the applicant, and perhaps his family, to a significant risk of personal harm.

23. In relation to the second and third aspects of the assistance, the applicant's information was described as "more general". Some of it was confirmed through police intelligence holdings and some could not be. It was not of a nature that police could act upon it. It is of far less significance than the first aspect.

Principles in relation to "fresh" and "new" evidence tendered on appeal

24. There was no controversy that because at the time of the sentence proceedings in 2009 the applicant knew that he had provided assistance to the police, even though it was not known by his lawyers, the evidence of it should be regarded as new rather than fresh. The Court may receive new evidence where it is "necessary to do so in order to avoid a miscarriage of justice": Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 at [2], [10].

25. The principles relating to the reception of fresh and new evidence in an application for leave to appeal against sentence were thoroughly canvassed by Simpson J (as her Honour then was) in her judgment in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 where she said, in part:

"[104] The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals.

[105] The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide:

(1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance;

(2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied.

But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved.

[106] I say "additional evidence" because a distinction has been drawn between "fresh" evidence and "new" evidence: see Abou-Chabake, per Kirby J, at [63].

[107] "Fresh" evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as:

"... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence."

"New" evidence, on the other hand, is evidence that does not qualify as "fresh", either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. …

[108] If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham."

26. Her Honour then made specific reference to applications for leave to appeal against sentence and there being "an additional, sometimes intractable, barrier to admissibility" in relation to facts or circumstances which have arisen post-sentencing. In this context she referred to assistance provided to authorities and physical and mental health conditions. She then referred to a "sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence" where the matter existed at the time of sentence but was not known, or imperfectly understood, at that time where, if the interests of justice have so dictated, the Court has admitted the evidence in order to correct the misunderstanding. Her Honour continued:

"[121] That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton)."

27. The point included in [108], and mentioned again in the final sentence of [121] of the above - the necessity of evaluating the capacity of the evidence to have affected the outcome at first instance - is critical to the outcome in this case.

Submissions for the applicant

28. In written submissions, the assistance provided by the applicant was described as "very considerable". The failure of the applicant to bring it to the attention of his lawyers was explained. It was misguided but should not be held against him. There was no tactical advantage to be gained by withholding it. It was submitted that it was in the interests of justice that the Court receive the evidence and reduce the applicant's sentences as would "almost inevitably" have occurred if the evidence of assistance had been placed before the primary judge.

29. Reference was made to this Court having received such evidence in the past in exceptional cases to guard against miscarriages of justice, even when the evidence was not strictly fresh. Many v R (1990) 51 A Crim R 54 was cited as an example.

Submissions for the Crown

30. Counsel for the Crown submitted that the new evidence of assistance is not of such a character that its absence in the proceedings in the District Court resulted in a miscarriage of justice.

31. It was submitted that the assistance was of limited weight. It did not, of itself, lead to the laying of any charges against any person. It did not involve the applicant giving evidence, or offering to do so: s 23(2)(b) and (d) of the Crimes (Sentencing Procedure) Act.

32. The Crown pointed to the fact that the sentencing judge found that because the applicant continued to deny his guilt, "There is … no remorse and contrition to be taken into account as a mitigating factor". As a consequence, it was submitted that it could not be said that the giving of assistance supported a finding of remorse.

33. It was submitted as well that the applicant's assistance to authorities would not create a situation in which he would "suffer harsher custodial conditions as a consequence": s 23(2)(g). The sentencing judge found that for other reasons, including the nature of his offences, the applicant "will serve his time in custody significantly more arduously than would others". The judge referred to the fact that he was in protective custody and was "likely to remain as an A2 classified prisoner for the whole of his term of imprisonment". He would have little, if any, access to educational facilities or rehabilitation programs. Her Honour accepted that the applicant "has fear, genuinely based, that he may be murdered in the gaol system, if not seriously harmed".

Consideration

34. The delay in bringing this issue before the Court has obviously been considerable and is not well-explained. It is particularly curious that the matter was not pursued further in 2012 when the applicant informed the lawyers who were representing him in the conviction appeal. A further aspect is the delay between his current lawyer becoming aware of the issue in the latter half of 2014 and the commencement of proceedings only a few months ago. However, there is force in the submission that there was no tactical advantage or self-interest in the applicant's tardiness. Counsel for the Crown candidly conceded this was so.

34. The rationale for reducing sentences for those who provide assistance to authorities was explained by Hunt CJ at CL and Badgery-Parker J in R v Cartwright (1989) 17 NSWLR 243 at 252 - 253:

"It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them in bringing other offenders to justice and to give evidence against those other offenders in relation to whom they have given such information. In order to ensure that such encouragement is given, an appropriate reward for providing assistance should be granted, whatever an offender's motive may have been in giving it, be it genuine remorse or contrition or simply self-interest. What has to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The effect of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he outlines his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless an offender discloses everything which he knows. To this extent, the enquiry is into the subjective nature of the offender's co-operation. If of course the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. Contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities. Again, in order to ensure such encouragement is given a reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities as comprehended by the offender himself."

36. What was said in R v Cartwright remains valid in spite of the subsequent enactment of s 23 of the Crimes (Sentencing Procedure) Act. One of its important features, in the form which it took at the time of sentencing and still now, is the prohibition in s 23(3) against reducing a sentence to a point which is "unreasonably disproportionate to the nature and circumstances of the offence".

37. The applicant's assistance involved the provision of information whereas significant reductions of sentence are usually reserved for offenders who also give evidence against others, or undertake to do so. Nevertheless, the assistance which concerned a rather dangerous criminal was of some substance. It was not such as to warrant a reduction of sentence by a large proportion but the extent of the reduction it should have attracted is not trivial either when one has regard to the very lengthy term that was imposed. The level of reduction should reflect the serious nature of the criminal activity about which the applicant volunteered information to police; the validity of his information; and the potential risk to which he exposed himself. The level of reduction should also serve the public interest discussed in R v Cartwright.

38. In my assessment, the applicant's overall sentence should be reduced by 10 per cent. That will not be productive of an unreasonably disproportionate sentence. It will be necessary to reduce the individual sentences and the degrees of accumulation in a manner that achieves this.

Ground 2 - miscarriage of justice because the applicant was dealt with on the basis that he had previously been convicted of a child sexual assault offence

39. This ground concerns another aspect of the complex procedural history. When the applicant was sentenced in 2009 his record comprised two prior convictions. They were for offences of assault and sexual assault of a person under the age of 16 years. The applicant had been sentenced for these offences in 2008 and received sentences of 18 months and 5 years respectively.

40. When sentenced in 2009, the judge referred in her sentencing remarks to these matters as follows (omitting unnecessary detail):

"At the time he committed these offences, he was a person with no criminal record. He has subsequently been convicted of one count of sexual assault of a child under sixteen after trial, and pleaded guilty to one count of common assault in relation to the complainant before me, a matter to which I have already referred. …

The offence for which he was convicted, the child sexual assault offence, occurred sometime between early 1983 and April 1985. … The complainant and her sister were staying over, and he went into her room when she was asleep and licked her vagina. … His Honour sentenced him to an overall term of five years for that offence with a three year non-parole period backdated to commence on 16 June 2008 …

The assault to which he pleaded guilty occurred on 20 March 2004. … His Honour viewed it as a serious assault and sentenced the offender to an overall term of imprisonment of eighteen months with a non-parole period of nine months. … I am told that there is an appeal to the Court of Criminal Appeal in relation to both conviction and sentence in relation to these matters. It has not yet been heard, and thus I will sentence on the basis that these sentences remain as ordered.

Whilst he committed the offences before me as a person with no prior criminal record, he cannot in reality be sentenced as a person of good character or have that taken into account as a mitigating factor. It is the case that he had no criminal conviction at the time he committed these offences, but in fact as events have transpired, he had committed the child sexual offence for which he was convicted and sentenced earlier, that is, namely in 1983 to 1985. In any event, the good character of an offender in a matter like this, even if available as a mitigating circumstance, is not particularly relevant, especially where as here, the offences against the complainant and the matters before me were part of a course of ongoing conduct over a lengthy period."

41. The appeal to this Court to which the second sentencing judge referred was heard and determined in 2010 and resulted in the applicant's conviction for the child sexual assault offence being quashed and a retrial ordered. The Director of Public Prosecutions subsequently determined to pursue the matter no further.

Submissions for the applicant

42. The written submissions for the applicant acknowledged that "the absence of previous convictions for matters of this type is, as her Honour correctly pointed out, a matter of minor significance when an offender was participating in an ongoing course of conduct over time". However, it was submitted that "the fact that the applicant had a previous conviction for sexually abusing a different victim at an earlier time must have aggravated sentence to some degree". As a consequence, the sentence imposed "must have been somewhat higher than they ought to be in the light of the fact that the applicant's conviction for the offence involving [the other victim] has now been quashed".

43. It was submitted that the sentencing exercise carried out in 2009 "was predicated on an incorrect fact" and so this ground should be upheld. Alternatively, it was submitted that if Ground 1 was upheld, re-sentencing should be carried out with regard to the fact that the previous child sexual assault conviction was subsequently quashed.

Submissions for the Crown

44. It was submitted for the Crown there is no suggestion of the primary judge having regarded the prior conviction for a child sexual assault offence as a matter of aggravation. Her Honour did not suggest that there was a greater need for general or specific deterrence or for denunciation by reason of that prior offence. She simply said that she could not take into account as a mitigating factor that the applicant was a person of prior good character. She also noted that even if she could, it would not be a matter that was "particularly relevant".

45. Even after the conviction for the prior child sexual assault offence was quashed, it remained the fact that the applicant's record comprised a conviction for a prior assault. It therefore remained the position that he was not a person of prior good character. In short, it was submitted that the applicant's submission that the sentence "must have been somewhat higher" could not be sustained.

Consideration

46. The Crown's submission should be accepted. The sentencing judge’s treatment of the past convictions was confined to denying the applicant a mitigating factor of prior good character that is conceded to be of minimal significance in any event. A finding of prior good character would not have been open if her Honour had been aware only of the prior assault offence, particularly when that offence concerned the same victim as in the offences for which the applicant was being sentenced.

47. This ground cannot be upheld.

Re-sentencing

48. In re-sentencing, in the unusual circumstances of this case, it is, arguably, simply a matter for this Court to arithmetically adjust the sentences imposed upon the applicant to give effect to the allowance that should be made for his assistance to authorities. A literal interpretation of what was said by the High Court of Australia in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 would have it that the Court is required to completely re-exercise the entire sentencing discretion.

49. The point need not be decided here because there was consensus at the hearing of the application that, subject to the two matters raised by the grounds of appeal, the sentences imposed in the District Court were otherwise appropriate. In indicating why I accept the correctness of that consensus it is necessary to provide some detail about the offences in question and the applicant's subjective case.

50. The complainant is the niece of the applicant's wife. She went to live with them in February 1995 when she was 9 years old because her father was deceased and her mother had a serious mental illness. The applicant assumed the role of a parent towards her but from the time when she was 12 years of age until she was 18 years of age he repeatedly subjected her to sexual abuse.

51. The following are the details of each of the 10 offences. The statutory provisions referred to are all within the Crimes Act 1900 (NSW). The commencement dates for the sentences are as adjusted by this Court following the quashing of some unrelated sentences.

Count 1 - aggravated indecent assault - s 61M(1) of the Crimes Act 1900 (NSW) - maximum penalty 7 years

52. On an occasion when the complainant was 12 years old the applicant told her to lie on his bed with him. He was watching a pornographic video and touching his penis. He touched and rubbed her genital area on the outside of her clothing and told her to touch herself. She refused to do so and got up and left quickly.

53. Sentence: fixed term of imprisonment for 12 months commencing 16 June 2008.

Count 4 - aggravated sexual intercourse with child between 10 and 16 - s 66C(2) - maximum penalty 10 years and Count 5 - commit act of indecency towards person under 16 - s 61O(1) - maximum penalty 5 years

54. In 1998 when the complainant was aged 12 or 13 there was an occasion when the applicant dragged her to her bedroom and threw her onto her bed. He pulled her underwear down, lifted up her skirt and licked her vaginal area. The complainant was screaming and crying and telling him to stop. He was angry and told her to shut up. The applicant then told the complainant to watch him masturbating to ejaculation into a towel. He said to her, "Sorry mate, I just had to do that".

55. Sentence: fixed terms of imprisonment for 3 years and for 12 months, both commencing 16 June 2009.

Counts 6 and 7 - each, aggravated sexual intercourse with child between 10 and 16 - s 66C(2) - maximum penalty 10 years

56. On an occasion in the first half of 1999 when the complainant was aged 13 she was home alone with the applicant. He told her to go to the front room, take her clothes off and lie on the floor which she did. He then performed oral sex upon her. The applicant took off his pants and asked the complainant to perform oral sex on him which she did. He ejaculated into her mouth. She then ran to her bedroom and then to a friend's house across the road.

57. Sentence: fixed term of imprisonment for 3 years from 16 June 2010.

Count 8 - attempted aggravated sexual intercourse with child between 10 and 16 - ss 66C(2) and 66D - maximum penalty 10 years

58. Each of the offences in Counts 8 to 10 occurred during the summer school holidays of 1999-2000 when the complainant was aged 14. On one occasion he told her to come to his room and offered her wine which she refused. He had previously spoken of wanting to have sex with her but she said she did not want to. On this occasion he told her that she was developed enough now, it would not hurt and she should relax but she reiterated that she did not want to. He tried to penetrate her vagina but was unsuccessful. She was crying, squirming and experiencing considerable pain. She pushed him off and went to her bedroom.

59. Sentence: fixed term of imprisonment for 3 years commencing 16 June 2011.

Count 9 - attempted aggravated sexual intercourse with child between 10 and 16 - ss 66C(2) and 66D - maximum penalty 10 years

60. On another occasion in the same holiday period he did the same thing. He used a condom and lubricant but was again unsuccessful in achieving penetration. She experienced pain and told him to stop, which he did not do immediately. After some 10 minutes she went to her own bedroom.

61. Sentence: fixed term of imprisonment for 3 years commencing 16 June 2011.

Count 10 - aggravated sexual intercourse with child between 10 and 16 - s 66C(2) - maximum penalty 10 years

62. On another occasion in this period the applicant again asked the complainant to have sex with him and this time succeeded in achieving penetration. He wore a condom, used a lubricant and ejaculated. She experienced pain once again.

63. The sentencing judge found that by this stage the complainant had come to accept that this was what was expected of her and so she did not resist any longer. She thought she had no choice; it was going to happen anyway; so she went along with it to avoid any force or violence.

64. Sentence: fixed term of imprisonment for 4 years commencing 16 June 2011.

Count 11 - assault - s 61 - maximum penalty 2 years

65. This offence occurred at the end of 2001 when the applicant was in what the judge described as a jealous rage because the complainant had been in the company of a young man the previous night at a school formal. The assault included kicking and putting the complainant onto the floor with his hands around her neck while he was kneeling on top of her. He said he was going to kill her and that she was a liar. The judge accepted that there was no suggestion of physical injury but it was towards the top of the range in terms of objective seriousness for such an offence.

66. Sentence: fixed term of imprisonment for 18 months commencing 16 June 2012.

Count 13 - aggravated sexual intercourse without consent - s 61J - maximum penalty 20 years - standard non-parole period 10 years

67. The complainant was aged 18 when this offence occurred on about 13 December 2003. She had just returned home from "Schoolies Week". The applicant asked her about men she may have met. He then told her to go to the front room and she realised this meant he wanted to have sex with her. She told him that she did not want to and that she hated him and he disgusted her. She was crying but took off her clothes because she thought she had no choice. While he was having penile-vaginal intercourse with her she scratched his back and told him that he was a disgusting paedophile. He said that she was putting him off and the intercourse ended without ejaculation.

68. The complainant moved out of the applicant's home in early 2004.

69. Sentence: imprisonment for 10 years with a non-parole period of 5 years commencing 16 June 2013.

70. Taken into account at the applicant's request in sentencing for Count 13 was an offence of using a carriage service to access child pornographic material (s 474.19 Criminal Code (Cth)). 303 images from 32 web pages were found when a search warrant was executed after the applicant was arrested. Her Honour described some as "not particularly explicit" while others "were at the highest level of explicitness".

71. The complainant gave evidence in the trial of "numerous" occasions when similar sexual activity occurred. Appropriately, the judge took this into account only as an indication that the charged acts for which the applicant was found guilty were not isolated incidents. There was also evidence in the trial of the applicant saying things to the complainant by way of manipulation and coercion; for example, "Come on mate, we're friends. We have a special bond. It will stop when you're eighteen, it is only sex, it happens all the time. This is very common."

72. Her Honour referred to the complainant coming into the applicant's home "as a very needy nine-year-old girl whose father had died when she was very young, and whose mother was not able to care for her because of her own mental health problems". She said the offences constituted a "gross violation of the trust that children ought to feel they can place in all adults, but particularly parents or those who stand in the place of their parents, to have their innocence removed from them in this way". She described each of the offences as serious and, correctly with respect, noted the importance of general deterrence in sentencing.

The applicant's subjective case

73. The applicant was aged 60 at the time of sentencing. He had been married for 39 years and his wife remained supportive. As indicated earlier, the judge found there was no remorse.

74. The judge accepted expert opinion that the applicant experienced post-traumatic stress disorder arising from his employment and also that he suffered from a chronic adjustment disorder with depression and anxiety. There was no evidence connecting his offending behaviour with any of his psychological or psychiatric conditions but the judge accepted it lessened the weight to be given to general deterrence and that the conditions would likely deteriorate through incarceration. Further, and as previously mentioned, the judge accepted that the applicant's time in custody would be significantly more arduous because of his protective classification.

75. The judge found special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act and reduced the non-parole component of the sentence accordingly.

Determination

76. Having taken into account the considerable seriousness of the applicant's offending but also aspects of his subjective case, the most pertinent being his mental condition, I am satisfied that the common position of the parties as to the otherwise appropriateness of the sentences imposed in the District Court should be accepted.

Orders

77. In giving effect to the applicant's success on Ground 1, and with some rounding for practical purposes, I propose the following orders which will have the effect that the applicant will be subject to an overall sentence of 13 years 6 months with a non-parole component of 9 years:

1   Time to file Notice of Application for Leave to Appeal extended to 1 June 2016.

2   Leave to appeal granted and appeal allowed.

3   Sentences imposed in the District Court on 6 November 2009 quashed and the following sentences imposed:

Count 1 (2007/16340-036): imprisonment for a fixed term of 11 months commencing on 16 June 2008.

Count 4 (2007/16340-038): imprisonment for a fixed term of imprisonment of 2 years 8 months commencing on 16 May 2009.

Count 5 (2007/16340-005): imprisonment for a fixed term of 11 months commencing 16 May 2009.

Counts 6 and 7 (2007/16340-039 & 040): on each, imprisonment for a fixed term of 2 years 8 months commencing 16 April 2010.

Counts 8 and 9 (2007/16340-041 & 042): on each, imprisonment for a fixed term of 2 years 8 months commencing 16 March 2011.

Count 10 (2007/16340-043): imprisonment for a fixed term of 3 years 7 months commencing 16 March 2011.

Count 11 (2007/16340-016): imprisonment for a fixed term of 1 year 4 months commencing 16 February 2012.

Count 13 (2007/16340-019) (and taking into account the Form 1 offence): imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 4 years 6 months. The sentence is to commence 16 December 2012. The non-parole period will expire on 15 June 2017 at which time the applicant will become eligible for release on parole. The total term will expire on 15 December 2021.

4   Order that Confidential Exhibit A be returned forthwith to the Crown.

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Decision last updated: 25 October 2016