At v R

[2020] NSWCCA 178

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

AT v R [2020] NSWCCA 178

Hearing dates:

3 June 2020

Date of orders:

29 July 2020

Decision date:

29 July 2020

Before:

Simpson AJA at [1];
Bellew J at [2];
Wilson J at [3].

Decision:

1. Grant an extension of time in which to file an application for leave to appeal to 3 February 2020;

2. Refuse leave to advance grounds 1 and 2;

3. Grant leave to advance ground 3;

4. Uphold the appeal;

5. Quash the sentence imposed in the District Court and, in lieu, sentence the applicant to a term of imprisonment of 6 years and 6 months, to date from 3 September 2016, expiring on 2 March 2023; with a non-parole period of 4 years and 3 months, expiring on 2 December 2020.

Catchwords:

CRIME – SENTENCE APPEAL – application for extension of time – application for leave to appeal against sentence – offence of sexual intercourse with a child under 10 years – child 19 months old – applicant in a position of trust – whether sentencing judge took into account an irrelevant feature and failed to take into account a relevant feature – whether sentence is manifestly excessive

Legislation Cited:

Crimes Act (1900) NSW

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

EG v R [2015] NSWCCA 21

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

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

PS v R [2015] NSWCCA 20

R v AJP [2004] NSWCCA 434

R v Fisher (1989) 40 A Crim R 442

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep)

R v ND [2016] NSWCCA 103

R v Skinner (1993) 72 A Crim R 151

RC v R; R v RC [2020] NSWCCA 76

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Trevor Essex v R [2013] NSWCCA 11

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:

Principal judgment

Parties:

AT (Applicant)
Regina (Respondent)

Representation:

Counsel:
M Ramage QC (Applicant)
D Patch (Respondent)

Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/00260882

Publication restriction:

Section 578A of the Crimes Act 1900 (NSW) prohibits the identification of the complainant, or any material that might identify her, including the name of the applicant

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

07 December 2016

Before:

Hock DCJ

File Number(s):

2014/00260882

Judgment

1. SIMPSON AJA: I agree with Wilson J.

2. BELLEW J: I agree with Wilson J.

3. WILSON J: From 5 to 9 September 2016 the applicant, AT, stood trial before her Honour Judge Hock and a jury of 12 at the District Court of New South Wales sitting in Newcastle. On the final day of trial, the jury returned a verdict of guilty to the single count on indictment, a charge of sexual intercourse with a child under ten years of age, contrary to s 66A(1) of the Crimes Act (1900) NSW. Later, on 7 December 2016, the applicant was sentenced to imprisonment for 8 years, to date from 3 September 2016, expiring on 2 September 2024. A non-parole period (“NPP”) of 5 years expiring on 2 September 2021 was fixed.

4. The applicant seeks leave, substantially out of time, to appeal against that sentence. If granted an extension of time, he advances three proposed grounds:

1. “The sentencing judge erred in taking into account actual bodily harm;

2. The sentencing judge erred in failing to find that the offence was out of character;

3. The sentence was manifestly excessive.”

The Sentence Proceedings

5. The act of intercourse alleged against the applicant was one of digital penetration. The victim of the offence was a 19 month old girl, the daughter of the applicant’s then partner. The offence occurred when the applicant was in a position of trust to the victim. At the time of its commission, an offence contrary to s 66A carried a maximum sentence of 25 years imprisonment, with a standard NPP of 15 years specified.

6. Proceedings on sentence were heard by her Honour on 1 December 2016. The Crown tendered the applicant’s criminal and custodial histories, together with – after the applicant’s conviction was recorded – a victim impact statement prepared by the mother of the victim. The applicant relied upon a psychological report prepared for the purpose of sentence proceedings by Ms Fleur Taylor. A further psychological report, ordered by the sentencing court, also formed part of the material on sentence.

7. The applicant’s New South Wales criminal history recorded a number of entries for offences dealt with summarily, commencing in 1988. He had convictions for malicious damage (three counts; one in 1988, another in 1990, and a third in 1991); two counts of possession and one of using a prohibited drug; driving with a mid-range concentration of alcohol; two separate counts of stealing; two counts of offensive language and two of offensive behaviour at varying times; and some traffic offences. His last conviction prior to the present matter was in 1994. There was a further criminal record from Queensland, noting a conviction from 1995 for stealing.

8. The custodial history showed nothing of note other than evidence of some days spent in custody with respect to this matter prior to trial, agreed by the parties to be six days.

9. In the victim impact statement, the victim’s mother described the terrible distress caused by the discovery of the commission of the offence, and the consequential upheaval in her and her family’s lives, which had adversely affected the victim and all of her family.

10. The court ordered psychological report was prepared by two senior psychologists with Corrections NSW, based upon notes from another psychologist who had interviewed the applicant. The authors observed that the applicant was [as at 29 November 2016, when the report was written] a 46 year old Aboriginal man who gave a history of a positive and caring upbringing, untroubled by abuse or neglect. Some earlier minor criminality, attributed by the applicant to alcohol and drug abuse and anti-social friends, had ceased about 20 years previously, and the applicant thereafter married and had a family. He had been consistently employed within the Indigenous community over those years. The death of his wife in 2012 after a long illness left the applicant a widower and, after five years of what he described as mourning, he formed a relationship with the victim’s mother. They were living together, with the children of each, at the time of the commission of the offence.

11. Actuarial risk measures applied to the applicant assessed him to fall within the low risk for sexual recidivism, with sex offender treatment programmes available to assist him. Alcohol abuse was identified as a problem that the applicant needed to address.

12. The psychological report tendered by the applicant contained a detailed personal history of the applicant, which confirmed that he had enjoyed a positive childhood, and noted that he had the support of a wide and loving family. Nothing of concern was recorded in a “psycho-sexual history”, with the applicant denying any deviant or impaired sexual history or interests. The offence was observed to be, seemingly, out of character.

13. A risk assessment analysis reached the same conclusion as was recorded in the court ordered report, that the applicant presented a low risk of sexual recidivism.

14. In submissions to the sentencing court, the Crown suggested that the offending fell “just below the mid-range of objective seriousness”, whilst the applicant argued it was “below the mid-range of seriousness”.

The Remarks of the Sentencing Judge

15. Her Honour imposed sentence on the applicant on 7 December 2016.

16. The applicant having been convicted after trial, it was for the sentencing judge to find the facts of the offence. Although there is a complaint as to the use made of evidence of actual bodily harm occasioned to the victim, there is no complaint about the facts of the offence as they were found to be by her Honour. They are as follows.

17. The applicant and Ms J, the mother of the victim, were involved in a relationship, and the couple were living together. Each had children from earlier relationships who also lived with them. One of Ms J’s children was 19 month old MJ.

18. The offence occurred on the early morning of 18 August 2014. Ms J woke at about 5.45am that day to find the applicant holding her baby in his arms. She could see that he had his right hand inside the baby’s nappy. MJ reached out for her mother, and Ms J took her from the applicant.

19. The nappy was sodden, and Ms J changed it, noticing that the tab securing the right side of the nappy had been pulled away. She saw that there was redness in her daughter’s genital area.

20. Ms J took MJ to see a doctor, and was referred on to John Hunter Hospital, where the baby was examined by a paediatric registrar. The doctor observed redness and saw two linear abrasions or erosions at the positions of 1 o’clock and 2 o’clock in the vestibule of the genital area. Swabs revealed the presence of fresh blood.

21. On returning home Ms J saw the applicant, who said to her, “With what you saw this morning...”. He did not finish the sentence, as Ms J cut him off. She took her children and moved out of the premises that day.

22. The following day, 19 August 2014, MJ was examined by a very experienced paediatrician and sexual assault practitioner, Dr Rhonda Ticehurst, who observed the linear abrasions and also saw two small areas of pinpoint bruising to the baby’s hymen. She concluded that the injuries had been occasioned during genital touching.

23. On 4 September 2014, Ms J telephoned the applicant and the call was recorded by authority of a warrant. She confronted the applicant with what she had seen. He accepted that it was possible that he had touched the child if he had been drinking, but denied touching MJ. The applicant was arrested soon after.

24. In an interview with police that followed his arrest, the applicant again denied the offence, although conceded that it was possible if he had been drinking. The evidence at trial established that he had not been drinking at the relevant time, and was sober.

25. Turning to the gravity of the offence, her Honour noted that the age of the child was a significant factor; the younger the child the more serious the offence. A 19 month old child was not able to complain about what the applicant had done, and the offence would not have been discovered had Ms J not woken in time to observe AT with her daughter.

26. The sentencing judge observed that the offence was brief and isolated, and that MJ did not exhibit any signs of distress. There was no evidence that the act was done for sexual gratification, and no evidence to establish the motive for the act. It was noted that:

“Although there was some physical injury to the child, it had resolved without any medical intervention by the time of the second examination” [one month after the first examination by Dr Ticehurst].”

27. Her Honour concluded that, because of MJ’s age, there was no evidence of any psychological impact; whether she was told of the incident in later life was a matter that would be determined by others, and any possible future impact could not be determined.

28. The offence was found to be aggravated by the fact that the applicant was in a position of trust to the victim.

29. Her Honour concluded that, over all, the offence fell below the mid-range of objective gravity for an offence of this nature.

30. She turned to the applicant’s subjective circumstances, noting his age and the minor nature of his criminal history, which entitled him to some leniency. Her Honour set out the applicant’s personal circumstances, necessarily drawn from the psychological reports since the applicant did not give evidence at trial or on sentence. This included his happy childhood, and supportive family, including the four children the applicant had with his late wife. The children were aged between 27 and 13 years, and the applicant’s 20 year old daughter, a teacher, was caring for the two youngest children, aged 17 and 13 years.

31. The applicant had a solid employment history, and was motivated to resume employment when released from custody. Although, with the applicant maintaining before her Honour that he was innocent, there was no evidence of remorse, the sentencing judge accepted that the risk posed by the applicant was low, and that his prospects of rehabilitation were good.

32. A finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was made in the applicant’s favour.

The Application to this Court

The Application for an Extension of Time

33. Following the imposition of sentence on 7 December 2016, the next day the applicant filed a Notice of Intention to Appeal against his conviction. The Notice, however, was allowed to lapse with no appeal filed. On 3 February 2020, a Notice of Application for Extension of Time was filed; it does not specify whether the application relates to conviction, sentence, or both, although each of the grounds filed with the Notice relates to an appeal against sentence alone.

34. The applicant relies upon an affidavit of his solicitor, Mr Green, of 3 February 2020, to explain the lengthy delay.

35. Mr Green deposes that the applicant received an initial grant of legal aid confined to examining the merits of the proposed appeal. That question was resolved adversely to the applicant, with counsel opining that a conviction appeal was without merit. Legal aid to pursue it was refused on 17 June 2017.

36. Thereafter, the applicant entered into correspondence with the Legal Aid Commission seeking further aid for another advice on merit, an application not determined until 27 August 2018. Why the resolution of this issue took 14 months is not explained.

37. The matter was assigned by the Legal Aid Commission to Mr Green’s firm on 24 October 2018, but the merit advice was not sought until 26 September 2019. Again, no detail is provided to explain why there was such an extensive delay, other than that it took “many months” to obtain the trial papers. Since those who represented the applicant at trial must have had all of this material in their possession, and presumably could have supplied it to Mr Green, it is not clear why this process took many months.

38. The merit advice was provided by Queen’s Counsel about four months later, on 20 January 2020, and the application for an extension of time was filed thereafter, on 3 February 2020.

39. Mr Green’s affidavit is quite inadequate in explaining why this application has taken over three years to be filed. As a general observation, such an extended delay, without a clear explanation of how it came about, is unacceptable, and does not support the grant of an extension of time. The principle of finality is an important one. The community is entitled to expect that a court’s decision, unchallenged within the time allowed by operation of law, and for years beyond that, is final. That is particularly so where the relevant offence involves a child. Here, it must have been additionally distressing to those connected with the victim of the applicant’s crime to find out, after believing for years that the matter was at an end, that further court proceedings were on foot. That is a consideration of some significance.

40. Where no challenge is made within the time permitted, an applicant should provide a clear and detailed explanation of the reasons for the delay. That has not been done in the present case.

41. However, since the question of any extension is strongly linked to the question of the merit of the proposed appeal, I will return to it after considering the application for leave to appeal.

The Application for Leave to Appeal

Ground 1: “The sentencing judge erred in taking into account actual bodily harm”

42. The applicant complains that, in determining the gravity of his crime, the sentencing judge had regard to an irrelevant matter, the occasioning of actual bodily harm to MJ, and that, in so doing, she breached the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31. That principle holds that it is an error to take into account on sentence, as a circumstance of aggravation, a matter which would have warranted the offender’s conviction for a more serious offence.

43. The applicant was convicted of an offence contrary to s 66A(1), which carried, at the material time, a maximum penalty of 25 years imprisonment. An aggravated form of the offence was provided by the then s 66A(2), which carried a maximum penalty of life imprisonment. Section 66A(3)(a) provided that a circumstance of aggravation was the intentional or reckless infliction of actual bodily harm.

44. The applicant’s complaint rests upon a single sentence in the remarks on sentence, where her Honour said:

“Although there was some physical injury to the child, it had resolved without any medical intervention by the time of the second examination”.

45. As this Court has frequently observed, it is important when assessing a claim of error in the imposition of sentence to look at the whole of the remarks of the sentencing judge, and consider any impugned section of those remarks in context.

46. Here, not only does the isolated sentence pointed to by the applicant fail to establish that her Honour wrongly took into account an aggravating feature, the impugned sentence read in context makes it clear that she did not make that error.

47. Her Honour referred to there being “some physical injury” shortly after noting that there was no evidence that MJ had been distressed by the commission of the offence. Rather than referring to the evidence as a feature which aggravated the gravity of the crime, however, it is clear that the reference was made as a corollary of considerations of psychological trauma. That is, there was no evidence of distress caused to MJ, and the evidence of injury relied upon by the Crown at trial to establish digital penetration was of a sufficiently minor nature that it did not cause upset, and had resolved rapidly, without need for any medical intervention, and with no lingering effect.

48. Although the sentencing judge did, later in her remarks, find that there was a feature which aggravated the criminality of the offence, being that the applicant held a position of trust with respect to MJ, she made no further reference to injury in that context. She did not at any stage describe the injury as “actual bodily harm”, and nor did her Honour find as a matter of fact that it had been inflicted by the applicant intentionally or recklessly.

49. The way in which the sentencing judge referred to and treated the evidence of injury was entirely consistent with the use made of it by the applicant in his counsel’s submissions on sentence in the District Court. In oral submission, counsel said:

“There was some injury occasioned. Your Honour will recall that from the medical evidence, but it was said to have healed by the time of the second examination, with no long term impact on the child. The other issue I raise is that, as the evidence fell, and largely that came from Ms [J], there was no obvious distress when Ms [J] observed what she observed, to the child, at the time of the offending, which may allow a finding that the force used isn’t there or there’s not excessive force in the way the penetration was occasioned because there didn’t appear to be any distress or struggling or crying by the child, which would certainly indicate perhaps a more objectively serious matter”.

50. That is, counsel relied upon the evidence of injury to point to an offence which did not involve the use of any significant force.

51. Had a very experienced criminal lawyer and jurist, as her Honour is, intended to find that an aggravating feature was established, it is reasonable to conclude that she would have said so, as she did when referring to the breach of trust. Reading the impugned sentence in context, and as part of the whole, it is clear that her Honour made no such finding. She treated the evidence of injury as the applicant had submitted she should.

50. This ground is not made out.

Ground 2: “The sentencing judge erred in failing to find that the offence was out of character”

53. By contrast to ground 1, this ground relies upon the absence of a phrase, “out of character”, in the remarks on sentence to argue that her Honour failed to take into account a feature of the subjective case that should have led to a diminution of sentence.

54. In her psychological report, relied upon by the applicant during the proceedings on sentence, Ms Taylor observed that the applicant did not have a history of committing sexual offences and:

“To that end, Mr [AT’s] engagement in the current offending behaviour appears to be out of character for him”.

55. That comment was consistent with the applicant’s criminal history which, as noted at [7], contained convictions only for property and conduct offences that were dealt with summarily.

56. During the sentence hearing, the applicant made submissions as to the isolated nature of the offence, and the absence of evidence of a motivation of sexual gratification. The following exchange between counsel for the applicant and the sentencing judge, the first part of which is relied upon by the applicant to point to error, is recorded:

“COUNSEL: […] When you[r] Honour has regard to Mr [AT’s] record, it’s absolutely--

HER HONOUR: Seems to be completely out of character, I agree.

COUNSEL: --out of character.”

57. Counsel continued:

“He’s been out of trouble for a significant period of time, been in a very stable relationship, raising children of his own and then this offence occurs. So there isn’t any evidence before the Court in terms of motivation and I would submit ultimately to your Honour there’s no evidence that it falls as motivation by sexual gratification, which might also otherwise aggravate or make more objectively serious the matter before your Honour.”

58. Subsequently, when delivering judgment, her Honour did not use the phrase “out of character”, as she did in exchange with counsel, and as used by Ms Taylor in her report. This, submits the applicant, establishes error.

59. Although conceding that the sentencing judge made reference to his minor criminal history, and set out some of the favourable features of his subjective case, the applicant complains that her Honour should have made “a finding” that the offending behaviour was out of character.

60. This complaint is as meritorious as that which underpins ground 1.

61. In delivering a sentence, it is not necessary for a sentencing judge to use a particular form of words or a particular phrase, because the phrase was used in evidence, because counsel used the phrase in submissions, or because the judge him or herself used it in discussion with counsel during submissions. What is necessary is for the sentencing judge to take into account all relevant objective and subjective features in determining the sentence to be imposed.

62. Again, if her Honour’s remarks on sentence are considered as a whole, there can be no doubt that she was both aware of, and accepted, that the applicant had not previously sexually offended, and that his criminal record contained only relatively minor offences, and her Honour gave the applicant the benefit of those aspects of the subjective case. She referred to:

1. “The applicant’s ‘relatively minor’ criminal history;

2. The length of time since his last conviction, from Queensland in 1995;

3. His entitlement to ‘some leniency to reflect this’;

4. The ‘isolated’ nature of the offence;

5. The absence of evidence that the applicant acted for his own sexual gratification;

6. The applicant’s educational and employment background, particularly his ‘history of stable employment’;

7. The conclusion that the applicant presents a low risk of reoffending; and

8. The applicant’s prospects for rehabilitation, which her Honour regarded as good, and supported by his close family ties and pro-social networks.”

63. Those conclusions reflect the sentencing judge’s awareness that the applicant had never before sexually offended and had, over the previous 20 or so years lived a positive and law abiding life. Her Honour did not need to adopt Ms Taylor’s words, “out of character”, as they were used during the proceedings on sentence, to signal that she had treated the offence as an isolated incident. Her Honour used other language to the same effect.

64. This ground is not made out.

Ground 3: “The sentence was manifestly excessive”

65. By reference to a number of features taken together, the applicant contends that the sentence imposed upon him was manifestly excessive.

66. The first of the features to which he refers is the conclusion of the sentencing judge that the offence fell below the mid-range of objective gravity for offences of its type. In contrast to his submission to her Honour during the course of the sentence proceedings, where he argued that her Honour should assess the gravity of the offence as she did, in this Court the applicant argues that his crime “was close to the bottom in terms of objective gravity”.

67. He also points to the brevity of the period over which the offence was committed, its isolated nature, the absence of injury that required medical intervention or of psychological trauma, the absence of grooming and the lack of evidence of sexual motivation, and his strong subjective case.

68. Further, the applicant refers to statistics held by the Judicial Commission and a number of decided cases from this Court to argue that the sentence imposed upon him was too harsh.

69. I do not accept that her Honour’s assessment of the objective gravity of the offence as below the mid-range was one which was not open to her. As a starting point, it was the conclusion that the applicant asked the sentencing judge to draw in his submissions to her. An appeal to this Court is not one heard de novo, and it is not open to the applicant to recast his case on appeal. As Johnson J said, with the agreement of McClellan CJ at CL and Rothman J, in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, at [81]:

“The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29] (emphasis added).”

70. In any event, I would not conclude that an offence committed against a 19 month old baby – who was entirely defenceless to prevent the crime, or speak out about it – by a person in a position of trust, in the child’s home, could properly be described as at “close to the bottom” of any notional range of gravity. It was far more serious than that.

71. The sentencing judge referred to all of the facts, matters, and circumstances relevant to determining the gravity of the offences, as she was required to do: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]. The assessment her Honour made was well open to her, and in accordance with the applicant’s submission on that aspect of the matter.

72. The applicant relies upon statistics and a number of authorities to point to error. Such material is of very limited assistance in determining error, even where the statistical sample is large and the cases relied upon comparable. The question was considered in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] where the Court said, citing Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325 [6] and Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 605 [58]:

“[…] appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”.

73. It was held in Hili v The Queen that the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must determine sentences.

74. The question was revisited by the High Court in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 and in The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39. In the latter, the High Court said at [26]–[28]:

“As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.

It does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of sentencing discretion. As was emphasised in Hili, and again more recently in Barbaro v The Queen, the sentencing task is inherently and inevitably more complex than that. But it does mean that to prefer one State's sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.

Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:

(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

(2) The consistency that is sought is consistency in the application of the relevant legal principles.

(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.

(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.

(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.

(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.

(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle (footnotes omitted).”

75. Here, the applicant conceded that the statistics are based on such low numbers as to be of little assistance, whilst there is no decided case which is comparable. A brief review of some of those cases from this Court referred to by the applicant that relate to an offence contrary to s 66A offence carrying 25 years demonstrates that.

76. In R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575, the 22 year old applicant forced his 8 year old niece, whom he was caring for at the time, to fellate him until he achieved an erection, after which he sat her on his lap and rubbed his penis against her vagina. The impact on the child was significant. The offence was opportunistic and the applicant was of good character. He pleaded guilty to one count contrary to s 66A and asked that an offence of aggravated indecent assault be taken into account on sentence. The sentence imposed at first instance (3 years imprisonment with a NPP of 18 months) was set aside by this Court on appeal by the Crown and, instead, a sentence of 5 years imprisonment with a NPP of 2 years and 6 months was imposed.

77. In EG v R [2015] NSWCCA 21, the applicant had pleaded guilty to a count of aggravated sexual intercourse with a child under 10 years contrary to s 66A(2), an offence carrying life imprisonment. EG was the grandfather of the two year old victim, who was in his care. When changing the girl’s nappy the applicant licked her vagina; the child complained to her mother. The 67 year old offender initially denied but then admitted his offence. He was a man of good character, who was remorseful, with good prospects of rehabilitation. On appeal, this Court quashed the original sentence of 5 years imprisonment with a NPP of 2 years 6 months, imposing in its stead a sentence of 2 years imprisonment with a 1 year NPP.

78. PS v R [2015] NSWCCA 20 was another offence involving cunnilingus, by the six year old victim’s uncle. PS confessed what he had done to the child’s mother, and pleaded guilty after he was charged. He was a man with intellectual and cognitive disabilities, and substance abuse issues. This Court dismissed his appeal against a sentence of 6 years 6 months imprisonment, with a NPP of 3 years 6 months.

79. R v ND [2016] NSWCCA 103 was a Crown appeal against a sentence of 2 years 6 months imprisonment, with a NPP of 20 months imposed after trial for an offence involving digital-vaginal penetration causing pain, by ND of his five year old niece, who had been left in his care. ND stopped only when he thought he might be discovered. The offence had a profound impact on the child. ND had pleaded guilty, was of good character, and had reasonable prospects of rehabilitation. This Court quashed the sentence and imposed a sentence of 6 years imprisonment with a 4 year NPP.

80. These decisions can all be further distinguished from the applicant’s case in that the offenders all entered pleas of guilty, and received an appropriate discount. The applicant was convicted after trial.

81. The principles relevant to a ground of appeal that contends that a sentence is manifestly excessive (or manifestly inadequate) were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this Court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

82. It must be acknowledged that the sentence imposed upon the applicant is a severe one, although that of itself does not necessarily establish error. Ultimately however, and despite being unable to discern any patent error in her Honour’s remarks on sentence, I am persuaded that the severity of the sentence imposed at first instance was such as to be excessive. There are three features that, in my assessment, required the imposition of a lesser sentence.

83. Significantly, there was no evidence that the offence was committed for sexual gratification, a matter which reduces the gravity of the offending below that of an offence where sexual gratification was the motivation for the commission of the crime, and to no small extent: R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep); Trevor Essex v R [2013] NSWCCA 11; RC v R; R v RC [2020] NSWCCA 76 at [241].

84. The offence was isolated, and of very brief duration.

85. The applicant had a relatively strong subjective case, in that he had a history of positive engagement with family life and the community over the 20 years prior to the commission of the offence, and a minor criminal history that dated only to his younger years and which contained no entries of a similar nature. This offence was very much out of character, further reflected by the absence of any conduct that could have constituted grooming.

86. In determining a fair and just sentence it is necessary to bear in mind the maximum penalty of 25 years imprisonment that then applied, and the standard NPP of 15 years. Further, the principles to be applied in sentencing an offender for a crime such as this are important: this was an offence committed by a person in a position of trust against a vulnerable 19 month old girl in her home. Children of such a young age are completely vulnerable to abuse of this nature, and those who commit such offences might ordinarily be confident of committing them with impunity, because of that very vulnerability. That is one reason why this Court has consistently held that stern sentences are required to denounce this conduct, and to deter both the individual offender and, significantly, others who might contemplate offending in a similar way: R v Skinner (1993) 72 A Crim R 151 at 154; R v Fisher (1989) 40 A Crim R 442 at 445; EG v R [2015] NSWCCA 21 at [42]; R v ND [2016] NSWCCA 103 at [38]-[39].

87. The sentence imposed should be the minimum required to observe those principals, and fulfil the purposes of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Having regard to all of these matters, and to those features that I have highlighted, a lesser sentence serves those purposes. It must be concluded that the sentence imposed falls outside the available range of sentence, and thus that there has been error, albeit latent error.

88. An appropriate sentence is one of 6 years and 6 months imprisonment, with a NPP of 4 years and 3 months, preserving the finding of special circumstances made by the sentencing judge, although with some very slight difference in the specific ratio.

89. I would grant leave to advance ground 3, and allow the appeal on that ground.

90. Necessarily, an extension of time must be granted to the applicant in which to bring his appeal. The grant of leave in that regard should not be taken as diminishing in any way the matters referred to above at [39]–[40]. There is simply no proper explanation advanced by the applicant as to the lengthy delay in prosecuting his appeal. That is unacceptable, from the Court’s perspective, but more importantly, from the perspective of the community, including those most affected by these proceedings.

91. The orders I propose are:

1. Grant an extension of time in which to file an application for leave to appeal to 3 February 2020;

2. Refuse leave to advance grounds 1 and 2;

3. Grant leave to advance ground 3;

4. Uphold the appeal;

5. Quash the sentence imposed in the District Court and, in lieu, sentence the applicant to a term of imprisonment of 6 years and 6 months, to date from 3 September 2016, expiring on 2 March 2023; with a non-parole period of 4 years and 3 months, expiring on 2 December 2020.

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Amendments

29 July 2020 - Corrected typographical error to Order 5 on Coversheet and paragraph 91(5).

Decision last updated: 29 July 2020