Al Dhaifa v The King

[2024] NSWCCA 108

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Al Dhaifa v R [2024] NSWCCA 108

Hearing dates:

23 February 2024

Date of orders:

21 June 2024

Decision date:

21 June 2024

Before:

Garling J at [1]
McNaughton J at [85]
Weinstein J at [86]

Decision:

1. Grant leave to appeal to the Applicant.

2. Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing Judge erred in finding aggravation by reason of the age of the victims – Whether the sentencing Judge erred in his consideration of the age of the victims – Whether the sentencing Judge erred in not giving reasons for finding aggravation.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney-General for NSW v DSF Constructions Pty Ltd [2019] NSWCCA 33

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

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

Magoo v R [2020] NSWCCA 25

MRW v R [2011] NSWCCA 260

Mulato v R [2006] NSWCCA 282

PC v R [2022] NSWCCA 107; (2022) 108 NSWLR 181

Shannon v R [2006] NSWCCA 39

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Mohamed Al Dhaifa (Applicant)
The King

Representation:

Counsel:
G Scragg (Applicant)
S Traynor (Crown)

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

File Number(s):

2019/295188

Publication restriction:

1. There is a statutory prohibition upon the publication of any information leading to the identification of the victims.
2. There is a suppression order on the name and identity of the applicant, and a pseudonym order with respect to his name.
3. Order, until further order, that the appellant be known by a pseudonym which is Mohammed Al Dhaifa.
4. Order that the name of the proceedings be changed so that the proceedings be referred to as Mohammed Al Dhaifa v R.
5. Order, until further order or a period of 50 years whichever is the sooner, pursuant to s 7 of the Court Suppression and Non‑Publication Orders Act 2010 (NSW), that the name and identity of the appellant be suppressed upon the ground that the order is necessary to prevent prejudice to the proper administration of justice.
6. Order that the order is to apply throughout the Commonwealth of Australia.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 October 2020

Before:

Zahra SC DCJ

File Number(s):

2019/00295188

JUDGMENT

1. GARLING J: The applicant, to whom the Court has given the pseudonym Mohamed Al Dhaifa to prevent identification of his victims, seeks leave to appeal against the sentence imposed upon him by Zahra SC DCJ on 16 October 2020.

2. The applicant was sentenced to an aggregate term of imprisonment of 25 years with a non-parole period of 18 years. There were 18 offences against five children involving various different sexual offences which can be summarised as follows:

1. Victim TS: TS was the applicant’s nephew. Offences against TS took place between 1995 and 2005 when TS was aged between 5 to 14 years old. The offences were aggravated indecent assault of child under 10 years (Counts 1, 2), aggravated sexual assault of person under 16 years (Counts 3, 4), aggravated indecent assault of child under 16 years (Counts 5, 6).

2. Victim WS: WS was the applicant’s nephew. Offences against WS took place between 1999 and 2004 when WS was aged between 10 to 15 years old. The offences were aggravated sexual assault of person under 16 years (Counts 7, 8, 11, 12, 13), aggravated act of indecency of person under 16 years and under authority (Count 9), attempted aggravated sexual assault of person under 16 years (Count 10).

3. Victim AS: AS was the applicant’s nephew by marriage. Offences against AS took place between 2002 and 2004 when AS was aged between 12 to 15 years old. The offences were aggravated sexual assault of person under 16 years (Count 14) and attempted aggravated sexual assault of person under 16 years (Count 15).

4. Victim AT: AT was a friend of WS and TS. Offences against AT took place between 2006 and 2009 when AT was aged between 12 to 14 years old. The offences were aggravated indecent assault of person under 16 years (Counts 16, 17).

5. Victim MA: MA was the applicant’s son. A single offence against MA took place in 2019 when MA was 17 years old. The offence was aggravated sexual touching (under authority) (Count 18).

3. The details of the charges and the indicative sentences announced by Zahra SC DCJ are as follows:

Charge	Maximum Sentence / SNPP	Indicative Sentence
Victim: TS
Count 1: Aggravated indecent assault child under 10 years (7-8 yrs) s 61M(2) Crimes Act 1900	10 years	3 years
Count 2: Aggravated indecent assault child under 10 years (5 yrs) s 61M(2) Crimes Act 1900	10 years	4 years, 6 months
Count 3: Aggravated sexual assault person under 16 years (8-10 yrs) s 61J(1) Crimes Act 1900	20 years	10 years, 6 months
Count 4: Aggravated sexual assault person under 16 years (13 yrs) s 61J(1) Crimes Act 1900	20 years SNPP: 10 years	12 years NPP 8 years, 4 months
Count 5: Aggravated indecent assault person under 16 years (14 yrs) s 61M(1) Crimes Act 1900	7 years SNPP: 5 years	3 years NPP 2 years, 1 month
Count 6: Aggravated indecent assault person under 16 years (14 yrs) s 61M(1) Crimes Act 1900	7 years SNPP: 5 years	2 years, 3 months NPP 19 months
Victim: WS
Count 7: Aggravated sexual assault person under 16 years (10-11 yrs) s 61J(1) Crimes Act 1900	20 years	10 years, 6 months
Count 8: Aggravated sexual assault person under 16 years (10-12 yrs) s 61J(1) Crimes Act 1900	20 years	10 years, 6 months
Count 9: Aggravated act of indecency person under 16 years and under authority (12-15 yrs) s 61O(1) Crimes Act 1900	5 years	9 months
Count 10: Attempted aggravated sexual assault person under 16 years (12-15 yrs) s 61J(1)/s 61P Crimes Act 1900	20 years	6 years, 9 months
Count 11: Aggravated sexual assault person under 16 years (12-15 yrs) s 61J(1) Crimes Act 1900	20 years	12 years
Count 12: Aggravated sexual assault person under 16 years (12-15 yrs) s 61J(1) Crimes Act 1900	20 years	9 years, 9 months
Count 13: Aggravated sexual assault person under 16 years (12-15 yrs) s 61J(1) Crimes Act 1900	20 years	12 years
Victim: AS
Count 14: Aggravated sexual assault person under 16 years (13 yrs) s 61J(1) Crimes Act 1900	20 years	9 years
Count 15: Attempted aggravated sexual assault person under 16 years (12-15 yrs) s 61J(1) /s 61P Crimes Act 1900	20 years	8 years, 3 months
Victim: AT
Count 16: Aggravated indecent assault person under 16 years (12-14 yrs) s 61M(1)/s 61M(2)	7 years SNPP 5 years	1 year, 6 months NPP 1 year
Count 17: Aggravated indecent assault person under 16 years (13-14 yrs) s 61M(1) /s 61M(2)	7 years SNPP 5 years	1 year, 6 months NPP 1 year
Victim MA
Count 18: Aggravated sexual touching (under authority) (17 yrs) s 61KD(1)(a)	7 years SNPP 5 years	1 year NPP 8 months

4. The applicant received a 25% discount for his early pleas of guilty, which was applied by the Judge to the indicative sentence.

5. The aggregate sentence imposed by the Judge was fixed to commence on 20 September 2019, which was the date the applicant was arrested. He had remained in custody since his arrest.

6. On 7 December 2023, the applicant lodged an Application for Leave to File a Notice of Appeal After Expiry of the Filing Period.

Grounds of Appeal

7. The applicant relied on 15 Grounds of Appeal. They were:

Appeal Ground 1 - Count 1 regarding victim TS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether TS was very young.

3. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant living with TS and being a member of the same family.

4. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 2 – Count 2 regarding victim TS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant living with TS and being a member of the same family.

2. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 3 – Count 3 regarding victim TS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant living with TS and being a member of the same family.

2. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 4 – Count 4 regarding victim TS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether TS was very young.

3. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant living with TS and being a member of the same family.

4. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 5 – Count 5 regarding victim TS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether TS was very young.

3. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

4. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant living with TS and being a member of the same family.

Appeal Ground 6 – Count 6 regarding victim TS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether TS was very young.

3. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant living with TS and being a member of the same family.

4. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 7 – Count 7 regarding victim WS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant and WS being members of the same family.

2. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 8 – Count 8 regarding victim WS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant and WS being members of the same family.

2. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 9 – Count 9 regarding victim WS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether WS was very young.

3. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant and WS being members of the same family.

4. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 10 – Count 10 regarding victim WS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether WS was very young.

3. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant and WS being members of the same family.

4. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 11 – Count 11 regarding victim WS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether WS was very young.

3. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant and WS being members of the same family.

4. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 12 – Count 12 regarding victim WS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether WS was very young.

3. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant and WS being members of the same family.

4. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 13 – Count 13 regarding victim WS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether WS was very young.

3. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant and WS being members of the same family.

4. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 14 – Counts 14 and 15 regarding victim AS

1. His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

2. His Honour erred in not considering whether AS was very young.

3. His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Appeal Ground 15

His Honour erred in fixing an excessive aggregate head sentence and an excessive aggregate non-parole period by reason of the errors in fixing the indicative sentences relied upon supra in respect of counts 1-15.

Asserted Errors in the Sentencing

8. As can be observed, there is a considerable degree of repetition in each of the grounds of appeal for each of the counts. For convenience, the following summary consolidates these grounds, and relates them to each victim.

TS

Grounds 1, 4-6(a)

His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim TS (relating to Counts 1, 4, 5, 6).

Grounds 1(b), 4(c), 5(c), 6(c):

His Honour erred in not considering whether TS was very young (relating to Counts 1, 4, 5, 6).

Grounds 1(c), 2(a), 3(a), 4(c), 5(c), 6(c):

His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant living with TS and being a member of the same family (relating to Counts 1-6).

Grounds 1(d), 2(b), 3(b), 4(d), 5(c), 6(c):

His Honour erred in not giving reasons for finding aggravation under s 21A(2)(l).

WS

Grounds 9(a), 10(a), 11(a), 12(a), 13(a):

His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim WS (Counts 9-13).

Grounds 9(b), 10(b), 11(b), 12(b), 13(b):

His Honour erred in not considering whether WS was very young (Counts 9-13).

Grounds 7(a), 8(a), 9(c), 10(c), 11(c), 12(c), 13(c):

His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the applicant and WS being members of the same family (Counts 7-13).

Grounds 7(c), 8(b), 9(d), 10(d), 11(d), 12(d), 13(d):

His Honour erred in not giving reason for finding aggravation under s 21A(2)(l) (Counts 7-13).

AS

Grounds 14(a)-(c):

(a) His Honour erred in finding aggravation under section 21A(2)(l) of the Crimes Sentencing Procedure Act 1999 by reason of the age of the victim.

(b)   His Honour erred in not considering whether AS was very young.

(c) His Honour erred in not giving reasons for finding aggravation under section 21A(2)(l).

Remarks on Sentence

9. The Judge recorded the following background about the applicant:

“The [applicant] immigrated to Australia from Lebanon in 1994 and commenced living with his sister in Riverwood with her three children, which included the victims WS and TS. The children’s father did not live in the home and had little to do with the family.

The [applicant] gained employment as a trolley man and a cleaner… From 1997 the [applicant] worked night shifts and was home in the mornings before the children went to school and in the afternoons when they returned from school.

In December 2001 the [applicant] moved out of the Riverwood house to live with his wife in a granny flat at Panania. In December 2003 the [applicant]’s sister and her three children, including the victim WS and the victim TS, moved to an apartment in Punchbowl. The [applicant] was a regular visitor to the Punchbowl apartment. In July 2004 the [applicant]’s sister and the victim TS travelled to Lebanon and the [applicant] moved into his sister’s apartment at Punchbowl to care for the victim WS and the victim’s sister. The [applicant]’s wife was also overseas at this time and upon her return in November 2004 the offender and his wife separated. The [applicant] moved into his sister’s apartment at Punchbowl.”

10. The Judge then recounted the facts as to what occurred, which were drawn from the Agreed Set of Facts.

11. In each of those facts, the Judge recorded the age of the victim and the principal criminal offence together with the surrounding circumstances.

12. The Judge recorded that when the applicant was arrested, and following his caution by the Police, the applicant denied the allegations and “… blamed his sister, the mother of the victims WS and TS, for causing trouble and this problem”.

13. With respect to the subjective case of the applicant, the Judge recorded this:

“The [applicant] did not give evidence in the proceedings on sentence however he provided a history of his offending to the psychologist Ms Dombrowski, who subsequently provided a report to the Court dated 14 September 2020. Caution needs to be exercised in the assessment of the weight to be attached to histories provided by the [applicant] for the preparation of a report which remains untested.

The offending took place over a 24 year period between May 1995 and May 2019. The [applicant] told the psychologist that between May 1995 and August 2001 he resided with his sister and her children (which include two of the victims). He lived independently with his wife between August 2001 and December 2004. After that time he returned to his sister’s residence.”

14. His Honour noted part of the psychologist’s expert report which included this history:

“[The applicant] told me that he engaged in sexual contact with his nephews, their friend and his son because he believed his conduct was jovial and typical behaviour between men and boys in Lebanon. He told me that he did not know that sexual contact between men and boys was illegal in Australia. He denied being intoxicated at the time of the subject offences or being motivated by his own sexual gratification.”

15. His Honour went on to assess the objective seriousness of the offending. In this respect, he made a series of general remarks that were intended, so it seems, to be applied when considering the seriousness of individual counts.

16. His Honour had regard to the maximum penalty for each of the crimes for which the sentences were being considered. He noted that general deterrence was of great importance – particularly where the victims of predatory sexual assault were young children. He said that general deterrence was particularly important when an offender was in a position of trust in relation to the victim.

15. He said this:

“The age of a victim of sexual assault is relevant in the assessment of objective seriousness, even when age is an element of the offence.

Generally, the younger the victim, the more serious the offence might be, as the younger the child, the more defenceless and vulnerable. Provisions which aggravate the offending because of age are aimed at protection of the vulnerable from sexual exploitation and violation. Here, care should be taken as the date ranges in many of the charges cover a number of years over which the age of the victim during the stated period has also varied. Here the youngest age of a victim at the time of the offending, based on the date ranges in the charges, is about five years old. An offence against a child that age is significantly more serious than a child of 17 years old. Before an aggravating factor is taken into account on a particular offence I must be satisfied of that factor beyond reasonable doubt. When assessing the objective seriousness of the individual offences, the evidence of the age of the victim therefore needs to be determined with precision where age may be a matter relevant to the assessment of the objective gravity of the offending. Where I am unable to determine the age of the victim with precision, the assessment of the objective seriousness of the individual offence would need to proceed on the basis that the age of the child was at the upper point of the range set out in the charge.”

18. His Honour went on to address the offending in general, saying this:

“The offending involves a course of serious sexual assaults against five male victims, four of whom are related to the [applicant]. The offending occurred over a 24 year period. The offending commenced in around mid-1995 (involving the victim TS) and concluded in May 2019 (the offence involving the [applicant]’s son, the victim MA). There is a 10 year gap between the last of the offending involving AT (2009) and the offending involving the [applicant]’s son, the victim MA (2019). The most serious offences occurred between 1995 and 2005.

The victims were aged between five years old and 17 years old at the time of the offending. In relation to three of the victims, the acts involved repeated sexual abuse over a lengthy period of time. The age difference between an offender and a victim of child sexual assault is a relevant factor. The younger the child victim, the more serious the offence. The [applicant] was aged between 32 and 52 years old during the offending period. … I am of the view that the victims WS and TS were vulnerable victims. … I am of the view that AS, who was aged between 12 and 15 years old, was a vulnerable victim. … The age of the victim AT was between 12 and 14 years. The extent to which AT was under the age of 16 cannot be determined with precision and the conduct of the [applicant] may have occurred when the victim was aged 14. The [applicant]’s son MA was 17 years old at the time the [applicant] engaged in the sexual conduct towards him. It is difficult to make a determination that AT or the [applicant]’s son was vulnerable based solely by reference to their age.”

19. His Honour noted the complexity of assessing, on a scale, the objective seriousness of each of the offences and went on to say:

“Generally, the offending involves a breach of trust. However, care must be exercised before breach of trust is considered an aggravating factor when assessing the offences individually. Further, care must be taken to guard against double-counting this fact where the fact that the victim was under the authority of the offender is an element of the offence.”

20. He considered the circumstances of the offending generally. The Judge said this:

“Here, a consideration of the relationship between the [applicant] and the victim are intertwined with the consideration of the extent of planning for the offending. When the offending is looked at in isolation a conclusion may be reached that the offending was opportunistic or spontaneous. … The offender took advantage of opportunities presented to him when he was alone with the victims and when victims were placed in his care. The victims who were nephews of the [applicant] were frequently placed in his care and at times the [applicant] resided in the home of the victims WS and TS. From the pattern of offending it can be determined [that] the [applicant] frequently took advantage of the vulnerability of the victims who were placed in his care and placed in situations where they could not summon help. A number of the offences occurred when the [applicant] took the victims to bushland when he was accompanying them when they were training or playing sport.

Because of the difference in age the [applicant] was able to physically overpower the victims. Many of the offences were accompanied with a significant degree of physical force in anally penetrating the victims and forcing the victims to perform oral intercourse upon him.”

21. His Honour then went on to assess the objective seriousness of each of the offences. In so doing, from time to time, his Honour recorded the age of the victim. As a matter of course his Honour recorded briefly the facts relating to the count and the age of the victim and then any specific aggravating factor. By way of example, with Count 1, which was an offence of aggravated indecent assault on a child under 10 years, the Judge noted that TS was between 7 and 8 years of age at the time. He noted that the victim was very frightened as a result of the offence and by his attempt to report it and, as a consequence, did not disclose any other acts of the applicant. The Judge concluded that the applicant abused a position of trust or authority, and then assessed where the offence fell in the range of objective seriousness. From time to time, his Honour noted that the offending could not be considered to be isolated.

22. With respect to Count 4, which was an offence of aggravated sexual assault upon TS who was a person under 16 years of age. His Honour noted that TS was 13 years old at the time. He provided an overview of the salient facts. But he specifically drew attention, when expressing his conclusion about objective seriousness, to the significant violence involved, the course of conduct which included a continuous series of sexual acts upon TS, and the effect of the violent conduct upon TS during the commission of the offences. He also noted that TS was under the authority of the applicant. This was not an element of the offence.

23. His Honour continued to describe each of the counts and, where appropriate, noted individual aggravating factors. His Honour also noted the need for caution with respect to not double-counting aggravating factors. It seems that where age played a particular role in each offence, his Honour pointed to it.

24. By way of example of this approach, in Count 8, where the age limit was 16 and the victim was 10 to 12 years old at the time of the offence, his Honour specifically noted that the offending was objectively serious “as the victim was 10 to 12 years old at the time and was under the authority of the offender”.

25. His Honour expressed some conclusions about the objective gravity of the offending overall. He said:

“The offender was able to continue to sexually assault the victims over many years without intervention. He was placed in a position of trust, particularly at times of personal difficulties of the parents of WS, TS and AS. The offender would have understood that the trust placed in him was, in part, founded upon his position within the family and that he was misusing that position of trust.

The offender exploited multiple victims for his own sexual gratification. The offender would have been aware of the powerful position he held over four of the victims, who were his nephews and his son. It could only follow that the offender was aware of, and exploited, the powerful position he held as their uncle and father.”

26. His Honour noted the importance of general deterrence and denunciation so that the sentence imposed must also reflect “… a significant component of specific deterrence”. That was because his Honour concluded that the applicant had “… little insight, little appreciation of the substantial impact of his conduct upon the victims”.

27. His Honour considered whether the cognitive functioning of the applicant at the time of offending was in any way impaired. He concluded that it was not.

28. His Honour expressed some further conclusions with respect to the objective seriousness of the offences in the following terms:

“The offender disregarded, and took advantage of, the vulnerability of the child victims. The offender would have appreciated that his repeated acts of sexual abuse upon the victims over a lengthy period of time would have serious emotional consequences upon the victims. He would also have been aware because of the forcefulness of his conduct that at times he caused physical discomfort to the victims. He acted with disregard to those consequences.

Offences were committed in places where the victims were entitled to feel safe including, at times, in their family homes.

The offender faces sentence on numerous sexual offences against children, a substantial number of which are crimes of considerable gravity. As I have indicated, the sentences to be imposed must reflect a strong element of deterrence and denunciation of the offender’s sexual abuse of children of many years and to recognise the harm he has caused to the victims.”

29. His Honour was not persuaded that the applicant had shown any genuine remorse for the offending, however, because his Honour concluded that the applicant would require considerable treatment by way of rehabilitation in the community, he found special circumstances. He was unable to make any meaningful prediction about the applicant’s prospects of rehabilitation.

30. His Honour also addressed the other principles of sentencing about which no complaint is made.

31. When deciding to impose an aggregate sentence, his Honour made these general remarks:

“I intend to impose an aggregate sentence. This does not mean that considerations of accumulation are no longer relevant. The offences for which the offender faces sentence comprise a number of separate events over separate days involving five victims. I am of the view that some accumulation is called for. The ultimate sentence imposed must reflect the total criminality. It is necessary to ensure that the aggregation of all sentences is a just and appropriate measure of the total criminality involved. The aggregate non‑parole period must reflect the minimum period of imprisonment required to be served by the offender having regard to all the purposes of justice.”

32. His Honour allowed a 25% discount for the utilitarian benefit of the applicant’s early pleas of guilty by reference to the indicative sentences. He noted that any aggregate sentence which he imposed would be back-dated to the date the applicant was arrested and taken into custody.

33. His Honour, at the conclusion of his Remarks on Sentence, imposed an aggregate sentence of 25 years with a non-parole period of 18 years.

Submissions by the Applicant to the Judge

34. Before considering the grounds of appeal, it is useful to record salient parts of the defence submissions made to the Judge by the applicant. Counsel for the applicant, before the Judge, accepted that the objective seriousness of an offence depended on all of the circumstances which, relevantly, included the age disparity between the child and the offender, and the age of the child. He also noted the presence of aggravating factors, in particular offences which increased the objective seriousness.

35. Counsel accepted that with the exception of the victim AT, all of the other offences could not be regarded as isolated offences. He also conceded with respect to WS, TS, AS and MA, that the victims were under the authority of the applicant and that the applicant abused the position of trust or authority in relation to them.

36. He also made this submission about the vulnerability of victims:

“The age of a victim – or more accurately, being less than a particular age – appears as element in all of the offences for sentence (except the offence involving … MA). However, although being less than a particular age is an element of each offence, the age of the child is a relevant consideration to the objective seriousness of an offence and the younger the child, the more serious the offence: R v KNL [2005] 154 A Crim R 268 at [42].” (emphasis added)

37. Counsel also accepted that the applicant would be sentenced “… to a lengthy total term” but submitted that special circumstances should be found.

Submissions of Applicant on Appeal

38. In respect of a number of Counts, the applicant submitted that error occurred in the Judge’s reasons because he found that “age aggravated the offence under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999”.

39. For example, with respect to Count 1, it was submitted that because the victim was between 7 and 8 years old, and the offence involved the aggravated indecent assault of a child under 10 years, the age difference between the statutory age and the age of the victim, was not so significant as would constitute the victim as being “very young” and therefore amounting to vulnerability as an aggravating factor. He submitted that this approach had the effect of punishing the applicant a second time for the age of the victim.

40. With respect to Count 2, the submissions contended that age had been taken into account as an aggravating factor in a number of different ways: firstly, as an element of the offence; second, as going to the vulnerability of the victim; third, going to vulnerability in that the victim and the applicant lived in the same household; and fourth, as part of the facts amounting to an abuse of a position of trust or authority. It was submitted that the applicant had been inappropriately punished by having the age of the victim counted as part of a number of aggravating factors.

41. It is unnecessary to repeat all of the submissions made with respect to each offence, however, the thrust of the submissions was that age had been double‑counted, and that facts that had been used to support conclusions with respect to aggravating factors were taken into account separately either as matters of aggravation or, alternatively, as contributing to matters of aggravation.

42. It was also contended from time to time, with respect to different counts, that there was an error in the sentencing Judge’s reasons because he failed to give adequate reasons for finding aggravation.

43. The submissions concluded on the issues as to objective seriousness, saying this:

“131. Other than count 18 all offences were aggravated by age as an element of the offence. His Honour double punished for age by finding vulnerability under s 21A(2)(l). Age was also of direct relevance to s 21A(2)(k). As has been submitted age was used in different ways under s 21A(2) to punish for age. It is submitted that double, arguably more than double, punishment was imposed for age.”

44. The following submission was also made:

“136.   … It is submitted that this appeal is one of those rare cases because:

(i) It was an error by counsel to raise as an all-encompassing concession that s 21A(2)(l) arose in respect of TS, WS and AS. It was an error to concede that not only did it apply because of age it also applied because the victims were living in the same home and with members of the same family as the applicant.

(ii)   The concessions did not assist the applicant in the assessment of the seriousness of the offending.

(iv)   The applicant should be sentenced according to law.”

45. It was contended that the errors infected the fixing of the aggregate head sentence, because the relevant findings of objective seriousness were erroneous, and as a consequence, so were the indicative sentences announced by the Judge.

46. In oral submissions during the appeal, Counsel for the applicant sought to encapsulate his arguments on appeal. He said this:

“… In my submission … at the heart of the appeal and that is that on one view of it the relevant ages of the victims at various points in time was not properly made known to the sentencing judge in the sense of relying on ages as to not being particularly vulnerable, very vulnerable or if it was vulnerability that was made available under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act, how it was taken into account was not made clear.

That’s the second argument that I wish to mount which is that the reasons do not contain such exposition as to show how it was taken into account or, in fact, what other matters were taken into account as features of aggravation.

…

In my submission, when one sits back and looks at what was imposed with the absence of reasons as to why some were of such weight, it’s not clear as to how the sentencing judge arrived at the sentence he did, particularly in circumstances where this was a matter that was subject to a 25% discount.”

47. By reference to various Counts, the assessment of objective seriousness and the indicative sentences of the Judge (which were each reduced by 25% on account of the discount for early plea), Counsel for the applicant submitted that there was a disconformity between the assessments of objective seriousness and the sentences indicated. He submitted that in a number of cases, those indicative sentences were too high. He submitted that, having regard to that proposition, clearly the Judge must have taken into account and double-counted age and vulnerability as factors contributing to the sentence.

48. He also submitted that the excessive indicative sentences had the result that the aggregate sentence must have been inappropriately increased.

Submissions of the Crown

49. The Crown submitted that there was no error to be found in the Remarks on Sentence of the sentencing Judge, the indicative sentences or the aggregate sentence.

50. The Crown submitted that the reasons of the Judge were clear. Some general remarks had been made which were applicable broadly, and then when the facts were described with respect to each individual count where there was a specific issue of aggravation that was taken into account by his Honour. Otherwise, there was no specific issue of aggravation for that count in addition to those matters of aggravation which were discussed generally.

51. In particular, the Crown pointed to the concessions made by Counsel for the applicant who appeared before the Judge (but not on the appeal). The Crown submitted that the Judge acted in accordance with those concessions, which was an entirely correct approach, and there was no reason for this Court to take any different path.

52. Ultimately, the Crown submitted that if patent error was identified (which it did not accept) this Court would not sentence the applicant to any lesser sentence having regard to the period of time over which the conduct occurred, the seriousness of the conduct and its totality.

Discernment

53. I am wholly unpersuaded that the applicant has demonstrated any error in the Remarks on Sentence of the Judge, in the indicative sentences which have been identified or the aggregate sentence which was imposed.

54. The Judge was presented with a most complex sentencing task. There were 18 counts of offences involving five different victims, whose ages ranged both between the victims and within the group of charges against the same victims.

55. Although the Facts were agreed, it was necessary for his Honour to identify, with respect to each Count, the context and the particular facts. This he did. Having done so, his Honour paid attention to the applicant’s account of the offending and then moved to assess the objective seriousness of the offending.

56. The errors which are relied upon for the purposes of the appeal relate to the Judge’s assessment of the objective seriousness of the individual offences.

53. As this Court has said on many occasions, the assessment of the objective seriousness of an offence is classically or quintessentially within the role of the sentencing Judge in finding facts and drawing inferences from those facts. The assessment of objective seriousness is an evaluative exercise which requires an assessment of a range of factors which may be susceptible to significantly differing views: Magro v R [2020] NSWCCA 25 at [29] per Gleeson JA (Button and Hulme JJ agreeing); Mulato v R [2006] NSWCCA 282 at [37], [46].

54. The task for an applicant who seeks to demonstrate error in this evaluative exercise can be a most difficult one, because before this Court can interfere with the assessment made by the sentencing Judge, error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Attorney-General for NSW v DSF Constructions Pty Ltd [2019] NSWCCA 33 at [67] per Beazley P, at [119] per Fullerton J.

55. The question on appeal is whether or not the particular characterisation which the sentencing Judge gave to the circumstances of the offence was open to the Judge to make: Mulato at [37], [46]-[47]; Magro at [31]; DSF Constructions at [67], [119].

56. His Honour carefully identified the general features of objective seriousness of the offending with which he was concerned. This necessarily involved considering any aggravating factors set out in s 21A of the Crimes (Sentencing Procedure) Act 1999, and as well, any other factors related to the objective seriousness of the offence. Any such matters arose out of the Agreed Facts.

57. His Honour needed to consider in particular two of the sub‑sections of s 21A(2) being (k) and (l). They are in the following form:

“(k)   the offender abused a position of trust or authority in relation to the victim.

(l)   the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of a victim or because of the victim’s occupation, such as …”

62. The first of these two sub-sections invite a sentencing Court to identify whether the offender was in a position of trust with respect to the victim, or a position of authority with respect to the victim. This is determined by addressing any indicia of the position of the offender vis-à-vis the victim. These may include, but are not limited to, whether the victim lived in the same house as the offender, whether the offender was a parent, step‑parent, or otherwise in loco parentis, the age differential between the offender and the victim, whether the offender held a position of authority – such as a schoolteacher or police officer, which could affect how a victim perceived them.

63. It is relevant to keep in mind that abuse of trust and abuse of authority are separate and distinct: see MRW v R [2011] NSWCCA 260 at [77]; PC v R [2022] NSWCCA 107; (2022) 108 NSWLR 181 at [73], [76]-[77].

64. The second factor, namely the vulnerability of a victim, can arise because of the age of a victim, or other factors including those nominated in the section.

65. On this appeal, the applicant accepted that even though each of the offences, except Count 18, contained, as an element, that the victim was below a particular age, namely 16 years for all counts except Counts 1 and 2 where the age was 10 years, that the Judge was nevertheless entitled to have regard to the actual age of the victim at the time of the offence: Shannon v R [2006] NSWCCA 39 at [28], Howie J (with whom Mason P and Barr J agreed).

66. A careful review of the Judge’s Remarks does not show, when he considered the individual Counts for the purpose of assessing the objective seriousness of the offences, that there was any double-counting involving the age of the victim at the time.

67. It is clear that the age of the victims at the time of each offence, was a factor which contributed to the existence of aggravating features of the kind described in [61] above. As well, it was a fact which was relevant to the proof of the offence. As earlier indicated, the victim of the offence had to be below the relevant specified age. However, the fact that the age of a victim may be relevant to more than one element of aggravation does not mean that, of itself and without more, a sentencing Judge has double-counted features of aggravation, with the consequence that a manifestly excessive sentence has been imposed.

68. A sentencing Judge needs to be astute not to include as an aggravating feature of an offence when assessing the objective seriousness of that offence, any matter which is an essential element of the offence. By way of example, if a person offended against s 192(G) of the Crimes Act 1900 by dishonestly making a statement that was false or misleading in a material particular, with the intention of obtaining a financial advantage, then the sentencing Judge would be double-counting if, as an aggravating feature, that Judge was to include reference to s 21A(2)(o), namely that the offence was committed for financial gain.

69. But here, the circumstances are very different. The aggravating features where there is an abuse of a position of trust or authority, and where a victim was vulnerable, are separate aggravating features. Part of the factual basis for those aggravating features was the same fact, namely the age of the victim at the time. However, both aggravating features were made out by reference to other matters as well as the age of the victim. No double‑counting is involved in the way in which the Judge approached the sentence by determining that such aggravating features existed.

70. It was conceded at trial and on appeal that notwithstanding that a victim was under the specified statutory age for the particular offence, the age of the victim was nevertheless relevant as a consideration in assessing the objective seriousness of the offence.

71. Having carefully attended to the assessments by the sentencing Judge of the objective seriousness, and then the indicative sentences imposed, there is no basis for concluding that the sentencing Judge imposed excessive indicative sentences because there had been a double-counting of any feature.

72. The assessment of the objective seriousness with respect to each of the offences by the Judge was well within the bounds of his discretion, as were the indicative sentences announced with respect to each offence.

73. The applicant also submitted that the Judge’s Reasons had been inadequate.

74. The Reasons were necessarily lengthy and complex. The Judge made, in his Remarks on Sentence, reasons addressing the overall position of the offending, the general facts and circumstances and then, by reference to each offence, the particular features which contributed to the assessment of objective seriousness.

75. The Reasons were in this case, and in all of the circumstances, more than adequate to expose the Judge’s thinking about and his conclusions on sentence.

Manifest Excess

76. The principles by which this Court, on appeal, addresses a ground of manifest excess of sentence are well known and need not be repeated here. It is sufficient to note that the applicant needs to persuade this Court that the sentence imposed “is unreasonable or plainly unjust” such that this Court “may infer that in some way there has been a failure properly to exercise the discretion as the law reposes in the court at first instance”: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

77. Appellate intervention is only warranted where this Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. This is, by its very nature, a conclusion that does not admit of lengthy exposition: see Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59].

78. The sentence in question on this ground, is the aggregate sentence which was imposed by the Judge of 25 years with a non-parole period of 18 years.

79. In assessing whether or not the sentence was manifestly excessive, it is necessary to keep the principal features of the course of the applicant’s offending in clear perspective. He offended against five separate victims. His course of conduct occupied 24 years. The maximum sentence for offences against s 61J(1) of the Crimes Act of aggravated sexual assault for a person under 16 years of age, was 20 years. The applicant pleaded guilty to 10 such offences although one was constituted by an attempt to commit that offence. The same maximum sentence applied.

80. His Honour noted that the applicant exploited his victims for his own sexual gratification, knowing that he was causing, on occasions, physical discomfort to the victims and that his conduct would have had serious emotional consequences upon them. His Honour, correctly, noted that the sentence which was to be imposed needed to reflect a strong element of general deterrence, and specific deterrence, and denunciation of the applicant’s sexual abuse of the children. His Honour also held, correctly, that any sentence had to recognise the harm caused by the applicant to the victims. His Honour was not persuaded that the applicant had shown any genuine remorse for his offence, nor that he could make any meaningful prediction about the applicant’s prospects of rehabilitation.

81. In light of the findings of the Judge, the large number of offences, the seriousness of each of the offences, the need for general and specific deterrence and the denunciation of the offending, and in the absence of any determination of prospects of rehabilitation, the aggregate sentence could not be regarded as being in any way excessive.

82. That conclusion is supported by the degree of concurrence which the aggregate sentence represents having regard to each of the indicative sentences announced by the Judge.

83. Whilst I accept that the sentence is a lengthy one, having regard to the seriousness of the conduct, and the other features to which I have referred, it is simply not possible to conclude that the sentence was manifestly excessive.

84. I propose the following orders:

1. Grant leave to appeal to the applicant.

2. Appeal dismissed.

85. McNaughton J: I agree with Garling J.

86. Weinstein J: I agree with Garling J.

**********

Decision last updated: 09 July 2024