AH v The Queen

[2020] NSWCCA 279

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AH v R [2020] NSWCCA 279

Hearing dates:

7 August 2020

Date of orders:

2 November 2020

Decision date:

02 November 2020

Before:

Macfarlan JA at [1]
Fullerton J at [2]
Button J at [93]

Decision:

1. Leave to appeal is granted.

2. The appeal against sentence is upheld.

3. Quash the aggregate sentence imposed in the District Court on 6 September 2019 and in lieu thereof impose an aggregate sentence of 11 years’ imprisonment commencing on 9 April 2015 and expiring on 8 April 2026 with a non-parole period of 7 years expiring on 8 April 2022.

Catchwords:

CRIME – appeals – appeal against sentence – 20 counts comprising 16 counts involving the sexual assault or indecent assault of two children under the age of 14 and 16 and 4 counts involving the use of a child for pornographic purposes or the production of child pornography – whether sentencing judge failed to take into account (properly or at all) mitigating factors – whether sentence breached totality principles – whether sentence manifestly excessive

Legislation Cited:

Crimes Act1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

House v The King (1936) 55 CLR 499; [1936] HCA 40

Imbornone v R [2017] NSWCCA 144

Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37

Porter v R [2019] NSWCCA 117

Category:

Principal judgment

Parties:

AH (Applicant)
The Crown (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
D Patch (Crown)

Solicitors:
Watsons Solicitors (Applicant)
Solicitor for Public prosecutions (Crown)

File Number(s):

2008/8475

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

6 September 2019

Before:

Hunt DCJ

File Number(s):

2008/8475

Judgment

1. MACFARLAN JA: I agree with Fullerton J.

2. FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the aggregate sentence imposed by Hunt DCJ on 6 September 2019 after pleas of guilty were entered on 14 August 2019 to an indictment containing 20 counts. Sixteen counts were laid contrary to ss 61M(1), 61O(1) and 66C(2) of the Crimes Act1900 (NSW), each involving the sexual assault or indecent assault of two children under the age of 14 and 16, and four counts involving either the use of a child for pornographic purposes or the production of child pornography contrary to ss 91H(2) and 91G(1)(a) of the Crimes Act.

3. The offences on the indictment comprehended events extending over a period of approximately twelve months between January and December 2006.

4. Some of the offences on the indictment had been committed to the District Court for trial prior to the pleas of guilty being entered while other offences were laid ex officio. This accounts for the differences in the allowance made for the pleas of guilty. No issue was taken with that approach.

5. A Form 1 containing three offences pursuant to s 91G(1) of the Crimes Act and three offences pursuant to s 91H(2) of the Crimes Act were taken into account in the sentence indicated for Count 6.

6. The offences, their respective maximum penalties and any applicable standard non-parole periods, the sentencing judge’s assessment of the objective seriousness of each offence and the sentence indicated for each count are set out in the following table:

Count	Offence	Maximum penalty and SNPP	Objective seriousness	Indicative sentence and discount for plea
1	Incite child under 16 years to commit act of indecency in circumstances of aggravation s 61O(1) Crimes Act Complainant: WT	Imprisonment for 5 years	At the mid-range	21 months 10%
2	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	At the mid-range	27 months with a non-parole period of 20 months 25%
3	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	At the mid-range	27 months with a non-parole period of 20 months 25%
4	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	At the mid-range	33 months with a non-parole period of 24 months 10%
5	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	At the mid-range	27 months with a non-parole period of 20 months 25%
6	Aggravated sexual intercourse, child greater than ten and less than 14 years s 66C(2) Crimes Act Complainant: WT	Imprisonment for 20 years	Very slightly below mid-range but not low range	6 years (including matters on Form 1) 25%
7	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	At the mid-range	27 months with a non-parole period of 20 months 25%
8	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	Above the mid-range	30 months with a non-parole period of 24 months 25%
9	Incite child under 16 years to commit act of indecency in circumstances of aggravation s 61O(1) Crimes Act Complainant: WT	Imprisonment for 5 years	At the mid-range	21 months 10%
10	Use child under 14 years for pornographic purposes s 91G(1)(a) Crimes Act Complainant: WT	Imprisonment for 14 years	Mid-range	3 years and 6 months 10%
11	Produce child pornography s 91H(2) Crimes Act Complainant: WT	Imprisonment for 10 years	Mid-range	2 years and 8 months 10%
12	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	Above the mid-range	4 years with a non-parole period of 3 years
13	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	At the mid-range	33 months with a non-parole period of 24 months 10%
14	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	At the mid-range	33 months with a non-parole period of 24 months 10%
15	Incite child under 16 years to commit act of indecency in circumstances of aggravation s 61O(1) Crimes Act Complainant: WT	Imprisonment for 5 years	At the mid-range	21 months 10%
16	Aggravated sexual intercourse, child greater than ten and less than 14 years s 66C(2) Crimes Act Complainant: WT	Imprisonment for 20 years	Very slightly below the mid-range	5 years and 3 months 25%
17	Incite child under 16 years to commit act of indecency in circumstances of aggravation s 61O(1) Crimes Act Complainant: WT	Imprisonment for 5 years	At the mid-range	21 months 10%
18	Aggravated indecent assault, child under 16 years s 61M(1) Crimes Act Complainant: WT	Imprisonment for 7 years; SNPP 5 years	At the mid-range	3 years with a non-parole period of 2 years 10%
19	Use child under 14 years for pornographic purposes s 91G(1)(a) Crimes Act Complainant: LT	Imprisonment for 14 years	Above mid-range	4 years and 6 months 10%
20	Produce child pornography s 91H(2) Crimes Act Complainant: LT	Imprisonment for 10 years	Above mid-range	3 years 10%

7. The sentencing judge’s findings as to the objective seriousness of each count were not the subject of any challenge on the appeal. They were informed by a range of related factual findings made by the sentencing judge, including that the offences reflected a pattern of abuse and were not isolated acts of offending. As to the applicant’s offending generally, the sentencing judge stated:

All of the offences have both aspects of planning and aspects of spontaneity and opportunism, but they were committed against the backdrop of the offender developing the trust of the T family generally and had the effect, over time, for WT in particular and LT to a lesser degree, simply because of the smaller number of offences, of normalising aberrant conduct. One of the distasteful features of the matter that has left a profound mark on WT is that he found himself acting in what at the time seemed to be a voluntary way because of the trust that he held in the offender and the way that the offender normalised the kind of behaviour to which he was subject.

8. His Honour also found that the counts which involved physical sexual contact were objectively more serious that the offences which did not involve that degree of contact and, further, that the offences of indecent assault where ejaculation occurred (Counts 8 and 12) were objectively more seriousness than those where it did not (being Counts 2-5, 7, 13, 14 and 18).

9. The most severe sentences were indicated for the aggravated sexual assaults committed against WT (Counts 6 and 16).

10. The applicant was sentenced to an aggregate term of imprisonment for 12 years, backdated to commence on 9 April 2015 and to expire on 8 April 2027. After a finding of special circumstances, a non-parole period of 8 years was imposed. It is due to expire on 8 April 2023.

The history of the proceedings

11. The applicant first came to the attention of police when a search warrant was executed on his home in the ACT and a voluminous amount of child pornography was seized (“the ACT offence”). Some of the images related to the child complainants the subject of the offences on the indictment. On 20 June 2007, the applicant was granted bail by the ACT Magistrates Court. He entered pleas of not guilty on 20 July 2007.

12. Eight months later, and whilst the ACT proceedings were pending, the applicant was arrested by NSW police in respect of the greater number of the 20 counts on the indictment to which he ultimately pleaded guilty on 19 August 2019 (“the NSW offences”). On 22 May 2008, this Court granted the applicant bail for those offences. The grant of bail permitted him to return to reside with his mother in the ACT.

13. The NSW matters were before the District Court sitting at Queanbeyan on a number of occasions in 2008 but did not proceed to either trial or sentence before the applicant was arrested in the ACT on 13 May 2009 for further offences committed in that jurisdiction following the execution of a further search warrant. Thereafter he was detained in custody in the ACT pending the resolution of all the offences committed in that jurisdiction. Although a warrant for the applicant’s arrest was issued by Bennett SC DCJ in the Queanbeyan District Court on 7 May 2010 for the NSW offences, that warrant was not executed until the ACT matters were finalised and the applicant released from custody.

14. The applicant appeared for sentence in the Supreme Court of the ACT on 24 November 2010 after pleading guilty, inter alia, to committing an act of indecency on a person under the age of 16 years; seven counts of engaging in sexual intercourse with a person over the age of 10 years and under the age of 16 years; and two counts of intentionally possessing child pornography. He was sentenced to an effective term of imprisonment of 16 years and 6 months to date from 9 April 2009 and to expire on 8 October 2025. A non-parole period of 7 years was fixed to expire on 8 April 2016.

15. On 13 July 2013, following a successful appeal to the Supreme Court of the ACT against the severity of that sentence, the applicant was resentenced to 8 years’ imprisonment to date from 9 April 2009 and to expire on 8 April 2017 with a non-parole period of 5 years and 6 months to expire on 8 October 2014.

16. Prior to the expiration of the non-parole period, the applicant was charged with attempting to pervert the course of justice and two counts of incitement to kidnap. The offence of attempting to pervert the course of justice concerned the applicant’s efforts, whilst in custody in the ACT, to have the complainants in the ACT matters retract their statements. On 24 July 2015 (whilst a serving prisoner) the applicant was sentenced to a further effective term of imprisonment for 30 months for that offending. A further effective non-parole period of 15 months was ordered to expire on 8 January 2016.

17. The applicant successfully appealed his convictions for both incitement to kidnap offences. His appeal against conviction for attempting to pervert the course of justice was dismissed. On resentence, the further effective head sentence of 30 months was reduced to 18 months; the 15-month non-parole period was left unaltered.

18. The non-parole period in respect of all offending in the ACT expired on 8 January 2016. At the expiration of the non-parole period the applicant was refused parole. He remained in custody in the ACT until 9 December 2017 when he was released into the custody of NSW police and extradited to NSW pursuant to the warrant that had issued in the Queanbeyan District Court on 7 May 2010. The applicant did not seek a grant of bail upon his arrival in this jurisdiction.

19. Negotiations between the applicant and the Crown, including the laying of charges ex officio following a further complaint of sexual assault by one of the complainants, commenced in December 2018, culminating in the applicant's arraignment on 14 August 2019 and his entering of guilty pleas on that date.

20. It was common ground at the sentencing hearing that the delay of more than ten years before the finalisation of the NSW offences was a matter that the applicant was entitled to have taken into account on sentence, despite the fact that the delay was solely attributable to his conduct in committing offences in the ACT whilst on bail for the offences committed in this jurisdiction. That had the effect of effectively putting on hold the resolution of the NSW offences until the applicant was released to parole in the ACT, despite the fact that the NSW offences were committed earlier in time.

21. The aggregate sentence imposed by Hunt DCJ for the NSW offences was backdated to commence on 9 April 2015, six years after the commencement date of the sentence imposed in the Supreme Court of the ACT on 13 July 2013 following the applicant’s successful appeal against the severity of a sentence imposed in that court at first instance.

The grounds of appeal

22. The applicant relies on three grounds of appeal:

1. In sentencing the applicant, the sentencing judge failed to take into account (properly or at all) the following mitigating factors:

1. Youth and dysfunctional background;

2. Good character;

3. Remorse;

4. Delay; and

5. Prospects of rehabilitation.

2. His Honour imposed a sentence which breached the principle of totality.

3. The sentence imposed was otherwise manifestly excessive.

The proceedings on sentence

23. The Crown tendered on sentence the Crown Sentence Summary comprising agreed facts; the applicant’s NSW and ACT criminal records; the Victim Impact Statement written and read by WT (one of the children sexually abused by the applicant); the Form 1; and a Notice of Parole Order Not Made from the ACT.

24. The applicant did not give evidence. He relied upon a report of Dr Wayne Reid, clinical neuropsychologist and clinical psychologist, dated 29 July 2019; a letter of support from a registered psychologist, Thabile Twala, dated 9 August 2019; his submissions to the Royal Commission into Institutional Responses to Child Sexual Abuse and to the ACT Parole Board; testimonials from his parents; and an offer of employment from a carpet cleaning company. The applicant also tendered an undated ACT Corrective Services Sentence Information Report.

The facts for sentencing purposes

25. The facts found by the sentencing judge were consistent with the statement of agreed facts and may be summarised as follows.

26. The complainants are brothers. WT was born in July 1994 and his younger brother LT was born in April 1996. The applicant was born in April 1986.

27. The applicant was introduced to the complainants’ family at a family function in July 2003. They met for a second time in September 2005 and on this occasion the applicant befriended the complainants’ older brother JT. JT denied any sexual contact with the applicant. However he and the applicant put adult male homosexual pornography in WT’s bag when WT went on a school camp. It was discovered by a teacher and WT was disciplined.

28. In December 2005, the complainants’ family moved from Queanbeyan to Orient Point. Between January and May 2006, the applicant regularly travelled to their property and would often bring gifts for the family. Ultimately, the applicant became a trusted friend of the complainants’ parents. He told them that he was undertaking a Child Psychology Degree at Canberra University, and would often give them advice about their children’s behaviour. The applicant was not enrolled in that degree.

29. On 26 May 2006, the family moved from Orient Point to a property at “The Angle” near the NSW/ACT border. The applicant, who was living in Canberra at that time, visited the family weekly. When he visited, he would go walking with the complainants and their siblings. The complainants’ parents recalled that the applicant nearly always had his camera with him.

The complainant WT

The Crookhaven Heads offence: between 1 January 2006 and 26 May 2006: Count 1 and offences on the Form 1 taken into account on Count 6

30. The applicant would bring his pushbike with him when he came to visit WT and his family and would go on bike rides or walks with WT to the Crookhaven Heads Lighthouse. Around this time WT was being bullied at school and the applicant suggested to his parents that he take WT for a drive to counsel him. WT’s parents agreed to that suggestion.

31. The applicant drove WT to the Crookhaven Heads Lighthouse and asked WT to remove his pants. WT did so. The applicant asked WT to masturbate himself and WT complied (Count 1). As WT was masturbating the applicant, the applicant took photos of WT (Form 1 offences).

The Mudflats offences: between 1 January 2006 and 26 May 2006: Counts 2 and 3

32. “The Mudflats” is an area near WT’s home where the applicant and WT would visit, specifically an area called “the cubbyhouse”. At the cubbyhouse, the applicant gave WT cigarettes and showed him pornography. On occasions the applicant asked WT to watch pornography while masturbating him.

33. WT described two separate occasions when he agreed to the applicant’s requests. On one occasion, WT was masturbating the applicant when they were interrupted by a young boy who approached the cubbyhouse (Count 2). WT recalled another occasion because he had been smoking the cigarettes given to him by the applicant and he was physically sick while he was masturbating the applicant (Count 3).

The Kangaroo Valley offences: between 14 April and 17 April 2006: Counts 4-12

34. On this occasion WT and the applicant were taken to Kangaroo Valley by the complainant’s mother at the suggestion of the applicant after the discovery of adult male homosexual pornography placed into WT’s bag by the applicant and JT. WT’s parents had agreed to the applicant’s proposal, believing that he would mentor and counsel WT.

35. After they were dropped off by WT’s mother, WT and the applicant hiked some distance into the bush and set up a two-man tent in an isolated area.

36. On the first night, while the applicant and WT were sitting around a campfire, the applicant asked WT to remove his pants, after which the applicant started masturbating WT (Count 4). The applicant then asked WT to masturbate him (Count 5). This continued for some time.

37. The applicant then spoke to WT about experimenting with new sexual techniques with male friends before trying them with females. The applicant asked WT to remove his pants and underwear. WT did so. The applicant performed fellatio on him for about 20 seconds before WT pushed the applicant away (Count 6). The applicant apologised to WT for making him feel uncomfortable.

34. After breakfast the following morning, the applicant asked WT if he wanted to experiment sexually on him. At some point the applicant started masturbating WT with his hand (Count 7) and WT masturbated the applicant with his hand (Count 8). This continued for some time until both the applicant and WT ejaculated.

35. The following day, the applicant gave WT some cigarettes and alcohol and a pornographic magazine. The applicant asked WT to masturbate himself. WT did so whilst he smoked a cigarette (Count 9). The applicant filmed this as it was occurring. This footage was later discovered by ACT police on a hard drive seized from the applicant’s house. On the footage, WT appears to become light-headed from the cigarettes, and the applicant asks the complainant to start masturbating. WT is filmed looking at the pornographic magazine and masturbating.

36. The applicant filmed WT masturbating and urinating. This footage was also seized by police (Counts 10 and 11).

37. Later that day, the applicant got onto his knees and started masturbating. He asked WT to touch his penis but WT refused and walked away.

38. When WT returned a short time later, the applicant again asked him to touch his penis and promised WT a gift, including a CD. WT agreed and started masturbating the applicant. WT continued to do this until the applicant ejaculated (Count 12).

The Angle offences: between 26 May 2006 and 1 December 2006: Counts 13-18

43. On one occasion during this period the applicant and WT had gone for a walk from the complainant’s home. They located a small cave in an isolated place on the property. WT pulled down his pants and sat on a rock. The applicant got on his knees and masturbated WT (Count 13).

44. On another occasion during this period, the applicant was visiting WT’s home. Just prior to this visit, there had had been a storm that had left the paddocks covered in rubbish. The applicant suggested that he and WT collect the rubbish, in the course of which they entered a disused chicken coop. The applicant started talking about sexual experimentation and pulled WT’s pants down and started masturbating him. He continued to do this until they heard WT’s mother call (Count 14).

45. On another occasion, the applicant visited WT’s house. WT was involved in an argument with his siblings. The applicant suggested to WT’s parents that he take WT for a walk. The applicant and WT walked to a hill area adjacent to the house where the applicant asked WT to remove his pants and masturbate. WT complied (Count 15). The applicant took photographs of WT masturbating.

46. On another occasion when the applicant was visiting WT and his family, WT and the applicant went for a walk to an old campsite where the applicant took a number of photographs of WT. The applicant asked WT to remove his pants. WT complied. The applicant held WT’s penis and rolled him on to his stomach. He then put his hand between WT’s legs and inserted two of his fingers into his anus. This caused WT pain and discomfort (Count 16). WT saw the applicant smell his two fingers. WT said, “That’s fucked, don’t ever do that again”. The applicant laughed and said, “Come on, it was just a joke”.

47. The last occasion occurred when the applicant was at WT’s home and went for a walk to the hill adjacent to the property. Once they were alone in an isolated area the applicant asked WT to remove his pants and masturbate himself. WT complied (Count 17). At some point the applicant took WT’s hand and put it onto his exposed penis. WT masturbated the applicant (Count 18). During this incident the applicant took photographs of WT with his pants down while he was masturbating (Form 1 matters).

The complainant LT

Offences at The Angle: between 1 May 2006 and 31 December 2006: Counts 19 and 20

48. On one occasion, LT went camping with a number of his siblings and a younger cousin to an area on the family property at The Angle. LT was aged 10 years. The area where they were camping was some way from the family home and was a regular camping location.

49. The applicant came to the complainants’ home after speaking over the phone with their parents. They told the applicant that the children were all out on the property camping. The applicant watched a movie with the complainants’ parents and then told them he was going to go and visit the children. The parents tried to persuade him not to go, but after some discussion he left and went to the camping area. The complainants’ parents watched him go.

50. The following morning, LT felt unwell. He went to the toilet in bushland near the campsite. He defecated and used some leaves to wipe himself. The applicant was nearby and took photographs of LT. These images show LT’s anus and genitals. The applicant also took photographs of LT’s faeces. Photographs located on the applicant’s computer hard drives included 25 photographs of LT, including 8 photographs of faeces on the ground, 2 photographs of LT wiping his backside with a leaf and 12 photographs of LT’s genitals and anus. In these photographs, LT is facing forwards and holding open his backside, and in others he is pushing his scrotum and penis backwards away from his body. There were also 3 photographs of LT leaning forward with his pants down and backside exposed. One of the photographs shows LT looking towards the applicant and smiling (Counts 19 and 20).

51. In December 2006, WT disclosed to his mother that the applicant had offended against him. She contacted ACT police.

The first ground of appeal

52. The first ground of appeal concerns what is said to be the failure of the sentencing judge to properly take into account a number of factors relied upon by the applicant in mitigation of sentence.

53. On the appeal, the applicant accepted that there was a degree of overlap between the first ground of appeal which must be understood to allege a series of House v The King errors ((1936) 55 CLR 499; [1936] HCA 40) since the weight to be afforded any factor relied upon in mitigation of sentence is quintessentially a matter calling for the exercise of a sentencing discretion, and the third ground of appeal which contends that the aggregate sentence imposed was manifestly excessive, in large part because of what is said to be the combined weight of the mitigating factors.

The applicant’s youth and lack of criminal antecedents

54. The applicant was aged between 19 and 20 years at the time of the offending. At the time of the offending he had no criminal antecedents. He was aged 33 years at the time of sentence. By that date, he had multiple criminal convictions for child sexual abuse and had served a lengthy period of imprisonment in the ACT for that offending.

55. Notwithstanding the applicant’s sexual abuse of other child complainants the subject of the ACT proceedings (offences which were committed after the NSW offences and whilst the applicant was on bail for those offences), the sentencing judge expressly took into account the applicant’s age at the time of the offending and the fact that he had no criminal record at that time. His Honour also observed, consistent with established sentencing principles, that an offender’s good character is of less weight in a sentencing exercise which involves the sexual abuse of children.

56. I am unable to discern any error in his Honour’s approach to the assessment of the weight to be afforded the applicant’s relative youth at the time of the offending in 2006 and the fact that he did not have an antecedent criminal record at that time. They were matters, both in the appointment of indicative sentences and in the ultimate imposition of an aggregate sentence after application of the principles of totality, to be afforded such weight as the sentencing judge considered that they deserved in the exercise of the sentencing discretion.

The applicant’s dysfunctional background

57. The facts relevant to an assessment of the applicant’s contention that the sentencing judge failed to adequately take into account his dysfunctional background (or to take it into account at all) included, most relevantly, his account, given in a range of forums, of the circumstances in which he was subjected to bullying and sustained sexual abuse by teachers and older students whilst he was a student at a boarding school in Queensland between the ages of 9 and 16. His Honour expressly took into account that material, noting that the primary judge in the ACT sentence proceedings was satisfied that the applicant had been the subject of serious sexual abuse as a juvenile. His Honour also took into account the fact that the applicant had furnished a detailed submission to the Royal Commission into Institutional Responses to Child Sexual Abuse concerning the abuse he was subjected to as a school student.

58. The applicant’s accounts of sustained sexual abuse were also taken into account in the various psychological assessments Dr Reid performed for the purposes of his report. The applicant reported to Dr Reid that he had been threatened with harm if he reported the abuse and that, as a result, he was socially isolated at school and that he experienced difficulties dealing with the residual effects of the sexual abuse he had endured upon leaving school.

59. The sentencing judge took into account the views of Dr Reid extracted in full in the sentencing reasons as follows:

From the history and from my examination it’s difficult to determine [the applicant’s] motivation for the sexual assaults when they occurred. Considering his alleged history of prolonged sex abuse during his childhood and the psychological trauma he describes from that abuse while he was at boarding school, from the age of nine to 16, it is likely that this trauma affected the development of his own sexuality and forms a nexus to the offences that he has been charged with. It would appear at that time he has poorly developed social skills and difficulties in relating to similarly aged peers and his sexual orientation would appear at that time and appears to continue to be confused.

60. Ultimately, the sentencing judge was satisfied that the abusive sexual experiences the applicant was exposed to over his formative years informed his sexuality in such a way that male children became a source of sexual attraction to him. The sentencing judge also expressly found a causal nexus between the abuse the applicant suffered and his sexual offending against children, such that ongoing psychological treatment was necessary to facilitate the applicant’s safe release into the community on parole.

61. I am not satisfied the applicant has established that the sentencing judge failed to take either his youth or his dysfunctional background into account on sentence or to give those considerations appropriate weight in the exercise.

Prospects of rehabilitation

62. The applicant’s prospects of rehabilitation were informed by the clinical assessments undertaken by Dr Reid and his analysis of the applicant’s responses using a variety of clinical tools. Dr Reid assessed the applicant’s intellectual functioning using the Wechsler Adult Intelligence Scale – IV, which revealed he was of average to high average intellect, with his non-verbal perceptual reasoning abilities in the superior range and at the 92nd percentile. Dr Reid also administered the Personality Assessment Inventory to assess issues such as symptom exaggeration, malingering and defensiveness, as well as symptoms consistent with a psychological disorder, as to which Dr Reid reported that the applicant:

… was inclined to portray himself in a more positive light being relatively free of common shortcomings and was reluctant to recognise minor faults in himself. The degree to which this factor was elevated however was not sufficiently high to render the interpretation of the overall clinical profile invalid.

63. The applicant was also screened for anxiety, depression and stress, and reported no significant symptoms of any of these matters.

64. The applicant told Dr Reid he had a large number of people from whom he could obtain support when needed. Dr Reid was of the opinion that, from an overall analysis of the applicant’s clinical profile, it appeared likely that these factors were “a favourable prognostic sign for [the applicant’s] future adjustment on his release from prison”.

65. The sentencing judge placed substantial reliance upon Dr Reid’s report and gave what he described as “significant weight” to the opinion of Ms Twala, a registered psychologist who had been actively engaged in the applicant’s treatment whilst he was in custody in the ACT, and her endorsement of what she described as the applicant’s “relentless commitment” towards his rehabilitation as an inmate in the NSW correctional system. The sentencing judge also endorsed Dr Reid’s recommendation that the applicant receive “psychodynamic/psychoanalytically orientated psychotherapy” to assist him to resolve issues related to his stunted psychosexual development and the prolonged psychological issues arising from childhood sexual abuse and that he attend a compulsory community-based treatment program for sexual offenders. I note that the sentencing judge also recommended that the NSW Parole Authority give careful consideration to that material in considering the conditions which it might impose when the applicant is eventually released to parole.

66. Dr Reid considered that whilst it was difficult to determine whether the applicant would reoffend against male children in the future, having considered the extent of the applicant’s response to therapy in custody, together with his expressions of remorse, Dr Reid concluded that the applicant was at low risk of reoffending.

67. The sentencing judge was unable to form the positive view that the applicant was unlikely to reoffend. His Honour described the applicant’s prospects of rehabilitation as “guarded”, in large part because of what he referred to as a level of “unresolved pathology” as revealed in Dr Reid’s clinical assessment and the applicant’s “pattern of his offending” which his Honour understood as “manifest complications on his psychology of the offending against him [as a school student]”. While the sentencing judge accepted that the applicant had done all he could to rehabilitate himself whilst in custody, the progress of his rehabilitation remained very much in issue. His Honour also noted that the ACT Parole Board had refused a parole application in December 2016 due to their concerns that the applicant “requires further intensive treatment to be considered a suitable candidate for parole”.

68. The sentencing judge acknowledged that as the applicant had been in custody for an extended period of years as a relatively young man there was a risk of him becoming institutionalised which his Honour treated as a factor that was not “protective to the community”. While it is not entirely clear what his Honour meant by that remark, in the context in which it appears in the sentencing reasons, the risk of the applicant becoming institutionalised appears to have been treated as one of the circumstances underpinning the finding of special circumstances, as to which his Honour said:

…I find special circumstances because he needs an extended period of supervision in the community and he is effectively still serving his first period of imprisonment even though it will be a very lengthy one. Additionally, it is in the protection of the community to avoid him becoming institutionalised. What that means is that I propose to rearrange the relationship between the non-parole period and the head sentence.

69. His Honour’s assessment of the applicant’s prospects of rehabilitation as at the date of sentence as “guarded” was a finding open to him on the material. As I read the sentencing remarks, that finding was also informed by the fact that the applicant has not been at his liberty since his arrest in the ACT in 2009. While the assessment of an offender’s future prospects of rehabilitation are necessarily prognostic, that assessment is necessarily qualified where a young offender has been in custody for many years.

The issue of delay

70. The applicant’s counsel submitted that the impact of delay ought to have “dominated the sentencing exercise” and should have weighed more significantly in the imposition of the aggregate sentence and/or the commencement date of that sentence. Counsel submitted that the treatment given to it by the sentencing judge who merely took delay into account in an “undiscounted fashion” has been to deprive the applicant of a significant factor in mitigation of sentence. Counsel submitted that in circumstances where the NSW charges have been unresolved for over a decade, during which time the applicant had shown what was accepted by the sentencing judge to be a demonstrated commitment to his rehabilitation, a greater degree of leniency was warranted than what was reflected in the ultimate sentencing order.

71. The sentencing judge correctly observed that the delay in the applicant being sentenced for the course of sexual offending in NSW in 2006 was because he had been convicted and sentenced in the ACT before the NSW offences could be finalised. His Honour also noted the issue of delay interacted, in a practical sense, with totality considerations in circumstances where, because the offences were committed in different jurisdictions, the applicant has not been in a position to invite one sentencing court to take into account the totality of his offending in a single sentencing exercise. Delay was, however, ultimately taken into account by the sentencing judge backdating the aggregate sentence to commence six years into the sentence imposed in the ACT. The commencement date of 9 April 2015 also had the effect of the sentence imposed in the ACT for attempting to pervert the course of justice being entirely subsumed in the aggregate sentence imposed for the NSW offences.

72. I am not persuaded that his Honour’s treatment of the fact of delay is indicative of error. That is not to say that his Honour might not have afforded it greater weight; it is merely to emphasise that the weight he gave it in the synthesis of all relevant sentencing considerations was a matter for the exercise of discretion which has not been shown to have miscarried.

Remorse

73. Although the applicant did not give evidence on sentence, his attitude to his past offending was the subject of repeated reference in the materials upon which he relied on sentence, including statements to various people which were said to be eloquent of remorse.

74. In Dr Reid’s report, the following was recorded:

When asked about his sexual offending he expressed great remorse and guilt over the hurt he caused his victims and he said he is horrified by what he did to cause such pain and anguish to the boys he sexually assaulted. He could not clearly identify the precursors of the offending but stated in retrospect he felt there must have been some grooming. (Emphasis added.)

75. Dr Reid went further and regarded the applicant’s “expressed remorse and guilt over his past offending” as contributing to his assessment of the risk of him reoffending being low.

76. In the letter of support from Ms Twala, she said:

[The applicant] for the years that I have known him in both group psychotherapy and in his individual therapy had been his grief, shame and anger that he had put of his victims and his family [sic]. He appeared to be concerned about everyone but himself.

77. Finally, in a letter from the applicant’s father and a letter from his mother tendered before the sentencing judge, they said:

I have at all times fully supported my son during his years of incarceration both in the ACT and more recently NSW. From the many prison visits over the past decade I am fully aware of his charges and privy to his inner thoughts in regards to the charges, his regrets and remorse for his actions, his fear of return to prison life and not re-offending again in the future.

…

I fully understand [the applicant’s] current predicament … and know he deeply regrets his actions and also for not seeking assistance from family at the time. The serving of his full sentence in AMC, ACT has assisted him immensely in his rehabilitation and road to recovery.

78. In oral submissions at the sentence hearing, the applicant’s legal representative referred to the evidence of remorse, albeit in general terms, and to the applicant’s pleas of guilty which, in her submission, were also a strong indication of contrition and remorse.

79. In the Crown’s written submissions on sentence, remorse was accepted as a matter the applicant could rely upon in mitigation of sentence, as to which it was said oral submissions would be directed. The Crown’s oral submissions did not address remorse.

80. No reference was made to counsel’s submissions or to the question of remorse more generally in the sentencing remarks.

81. I am unable to accept the Crown’s submission on the appeal that there was an implied acknowledgement by the sentencing judge of the applicant’s remorse in his Honour’s reference to Ms Twala’s letter of support and Dr Reid’s evidence, and that he has simply overlooked making express reference to it in the sentencing remarks. In the context of the overall sentencing exercise, the applicant’s remorse, the genuineness of which the Crown did not challenge in the sentencing hearing, was a matter deserving of weight in the sentencing exercise and a matter the applicant was entitled to have had expressly taken into account in his favour in mitigation of sentence.

82. To that limited extent, I am satisfied the first ground of appeal has been made out and this Court is obliged to resentence the applicant in accordance with Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37.

83. That being the case, it is not necessary for this Court to consider the remaining grounds of appeal. Insofar as the second ground of appeal is concerned, it will be for this Court to apply totality principles in the resentencing exercise. As concerns the complaint that the sentence was manifestly excessive, since the sentencing discretion is to be exercised fresh, complaint about the severity of the aggregate sentence imposed by the sentencing judge falls away.

Resentence

84. The Crown submitted that were the Court to find error in the failure of the sentencing judge to expressly take into account the evidence of remorse, the evidence available to this Court in assessing remorse as a factor in mitigation under s 21(3)(i) of the Crimes (Sentencing Procedure) Act1999 (NSW) on the balance of probabilities is limited. The applicant did not give evidence of his remorse before the sentencing judge and has made no explicit reference to it in his affidavit sworn on 8 June 2020 in the event of resentence. The Crown submitted that such evidence on the question of remorse that is available comes from third party sources and should be treated by this Court with circumspection. In the result, the Crown submitted that this Court would either give the applicant’s remorse no weight, or attribute to it only marginal weight, such that this Court would conclude there should be no adjustment to the indicative sentences and no lesser aggregate sentence than that which was imposed by the sentencing judge.

85. While the applicant’s most recent affidavit did not refer expressly to his remorse, I am prepared to infer that the statements he made to both Dr Reid and Ms Twala and to his parents were consistent with his remorse being genuine and reflecting an acceptance of his responsibility for the sexual offences committed by him in 2006 at a time when he was a much younger man.

86. I note that in Imbornone v R [2017] NSWCCA 144 at [57], Wilson J emphasised the cautionary approach that a sentencing court should take to statements of remorse made to third parties. I also note that in Porter v R [2019] NSWCCA 117, a case not dissimilar to the facts in this case and upon which the Crown relied in the resentencing exercise, RA Hulme J (with whom Hoeben CJ at CL and Davies J agreed) adopted that cautionary approach and concluded that the untested evidence of remorse in that case was such that RA Hulme J was not able to reach the positive conclusion that the applicant was “probably” remorseful.

87. In this case, although the applicant did not give evidence before the sentencing judge, he did give evidence of his remorse for the sexual offending the subject of the proceedings before the Supreme Court of the ACT in November 2010. After serving a lengthy sentence in the ACT and before being transferred into the NSW correctional system, he has also committed himself to what I am prepared to accept is a determined resolve to maintain and advance his full rehabilitation. I regard as reliable his consistent statements to various people that he is indeed remorseful.

88. On resentence I also take into account in the applicant’s favour that he has been a productive inmate within a number of NSW correctional centres, including in the role of Management of Security, sweeper to the kitchen clerk at the South Coast Correctional Centre where he has managed the daily operations of the kitchen staff and 48 inmate workers. I also note that since being sentenced in September 2019, the applicant has been transferred to the Kirkconnell Correctional Centre where he is a unit sweeper, having been reclassified to allow for his transfer. I accept that in that correctional centre he has maintained a proactive attitude and that he is a contributing member of the inmate community. I note that he has enrolled in a small business course and in various manual skills courses, including forklift driving, chainsaw, test and tag (electrical), grounds maintenance, food safety and welding. He is currently under referral to both the EQUIPS Foundation and CUBIT program. I also note his determination to resume tertiary studies in a Bachelor of Science and Bachelor of Engineering (majoring in Mechatronics), having completed three of the seven years of that course of study which was interrupted following his transfer from the ACT to NSW.

89. In circumstances where the applicant has been in continual custody for over a decade and where he is, even at the date of resentence, a relatively young man at age 34, it is difficult to treat the risk of his reoffending in other than the guarded terms expressed by the sentencing judge. I am, however, of the view that the passage of 12 months since the date of sentence, without anything to suggest any retardation in his progress towards rehabilitation or any interruption in that progress by internal disciplinary action, that his commitment to his rehabilitation is entitled to weight in the resentencing exercise. I accept his evidence on resentence that he remains “dedicated and committed to [his] positive rehabilitation”.

90. The objective seriousness of the applicant’s offending cannot be understated. For my purposes, I would not propose any alteration to any of the 20 sentences indicated by the sentencing judge in the schedule incorporated in this judgment at [6]. Neither would I propose any adjustment to his Honour’s assessment of the objective seriousness of any of the individual counts.

91. Notwithstanding the gravity of the totality of the criminality comprehended by the applicant’s pleas of guilty to the 20 offences on the indictment involving the sustained sexual abuse of two young complainants over a 12-month period, including two counts of using one of those children for photographic purposes and the production of child pornography, after taking into account the strength of the applicant’s subjective case on resentence, inclusive of his remorse and, perhaps most significantly, the fact that as a very young man he has been in continual detention for almost ten years for offending committed by him when he was a troubled and traumatised victim of sexual abuse, I am of the view that an aggregate sentence of 11 years with a non-parole period of 7 years should be imposed. I propose that sentence be backdated to the same date appointed by the sentencing judge to account for the delay in the proceedings in NSW ultimately being brought to finality.

Orders

92. The orders I propose are as follows:

1. Leave to appeal is granted.

2. The appeal against sentence is upheld.

3. Quash the aggregate sentence imposed in the District Court on 6 September 2019 and in lieu thereof impose an aggregate sentence of 11 years’ imprisonment commencing on 9 April 2015 and expiring on 8 April 2026 with a non-parole period of 7 years expiring on 8 April 2022.

93. BUTTON J: I agree with Fullerton J.

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Decision last updated: 02 November 2020