Baker v R

[2022] NSWCCA 195

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Baker v R [2022] NSWCCA 195

Hearing dates:

2 May 2022

Date of orders:

14 September 2022

Decision date:

14 September 2022

Before:

Brereton JA at [1];
Adamson J at [57];
N Adams J at [79].

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether applicant had actual knowledge of disability – Sentencing judge’s finding of actual knowledge, largely based on own observations of victim, was open

CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether victim’s age an aggravating factor – Relative age of victim to offender relevant to objective seriousness where it increases victim’s vulnerability as exploited by offender

CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether direction by applicant to victim not to tell anyone what happened constituted a threat and therefore an aggravating factor – No requirement that a threat must contain express consequences for non-compliance – Nature of statement informed by context in which it was said – In context of criminal conduct, statement carried implication of adverse consequences for non-compliance – Relevant direction held to be a threat and therefore an aggravating factor

CRIME – Appeals – Appeal against sentence – Where no express finding made as to prospects of rehabilitation – Prospects of rehabilitation and risk of re-offending are inter-related factors – No requirement that each is referred to in express terms if reasons as a whole show they have been considered

Legislation Cited:

Crimes Act 1900 (NSW), ss s 61J(1), 61M(1) Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(b), 12, 21A, 53A(2)(b)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Byrne v R; Cahill v R [2021] NSWCCA 185

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

Imbornone v R [2017] NSWCCA 144

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Keeley v R [2014] NSWCCA 139

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Meoli v R [2021] NSWCCA 213

Mohindra v R [2020] NSWCCA 340

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

Pritchard v R [2022] NSWCCA 130

R v Holdom [2018] NSWSC 1677

R v M.A.K.; R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Shortland [2018] NSWCCA 34

Simmons v R [2019] NSWCCA 20

Stephens v R [2010] NSWCCA 93

SW v R [2013] NSWCCA 103

Tindall v R [2019] NSWCCA 136

Category:

Principal judgment

Parties:

John Baker (Applicant)
R (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
M Millward (Respondent)

Solicitors:
Ross Hill & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/31630

Publication restriction:

A person shall not publish any matter which identifies the complainant or any matter which is likely to lead to identification of her: Crimes Act 1900 (NSW), s 578A.

The name of the complainant must not be published or broadcast in a way that connects her with the proceedings: Children (Criminal Proceedings) Act 1987 (NSW), s 15A.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 July 2020

Before:

Shead SC DCJ

File Number(s):

2017/31630

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted by a jury following trial in the District Court of three counts of aggravated indecent assault (victim with a cognitive impairment) (Crimes Act 1900 (NSW) s 61M(1)), and five counts of aggravated sexual intercourse without consent (victim with a cognitive impairment) (s 61J(1)). He was sentenced to an aggregate term of imprisonment of 19 years with a non-parole period of 13 years and 4 months. Concurrently, a bond to which he was subject was revoked and he was resentenced to a fixed term of imprisonment, the practical effect of which was that the aggregate sentence was accumulated by four months. The applicant sought leave to appeal against his sentence.

Held, per Adamson J at [78] and N Adams J at [79], dismissing the appeal (Brereton JA dissenting at [56]):

As to whether the applicant had actual knowledge of the victim’s disability:

1. Per Brereton JA; Adamson J and N Adams J agreeing: The sentencing judge’s finding that the applicant had actual knowledge of the victim’s disability was open. It was largely based on her Honour’s observations of the victim, a respect in which she enjoyed a position of advantage relative to this Court. Moreover, the distinction is of no significance to the applicant’s culpability in the present case: it is implicit in the verdict that, at the least, he adverted to the possibility that the victim was impaired and proceeded regardless: [19]-[20] (Brereton JA); [57] (Adamson J) and [80]; (N Adams J).

As to whether the sentencing judge erred by finding the victim’s chronological age was an aggravating factor:

2. Per Brereton JA; Adamson J and N Adams J agreeing: The relative age of the victim to the applicant was relevant to objective seriousness, because the differential increased the victim’s vulnerability, which was exploited by the applicant. Her Honour did not err in taking that discrepancy into account as relevant to the objective gravity of the offending: [24] (Brereton JA); [57] (Adamson J); [80] (N Adams J).

R v Shortland [2018] NSWCCA 34, explained; Mohindra v R [2020] NSWCCA 340, followed.

As to whether the sentencing judge erred in finding that the applicant threatened the victim and in treating that as an aggravating factor:

3. Per Adamson JA; N Adams J agreeing: Whether a form of words amounts to a threat depends not only on the words used but on the surrounding circumstances. In the context of the applicant having sexually assaulted the victim, telling her “not to tell anybody what happened, not to tell dad or the police or anybody what happened”, amounted to a threat. It is not necessary, in order for a statement to amount to a threat, that the precise consequences of not complying with it be spelled out. On that basis, it was open to her Honour to consider the statement a matter which aggravated the sentence: [60]-[61] (Adamson J); [81] (N Adams J).

4. Per Brereton JA (dissenting): The sentencing judge erred by treating the statement as a threat, and consequently as an aggravating factor. The statement involved no connotation of punishment, pain or loss if the victim did not comply; it amounted to no more than a request or direction that she keep what had happened to herself: [29]-[30].

As to whether the sentencing judge erred in finding that the applicant had not established prospects for rehabilitation and that there was no risk of reoffending:

5. Per Adamson J; N Adams J agreeing: Prospects of rehabilitation and risk of re-offending are factors which though distinct are inter-related. As long as it is evident from the reasons that the matters have been considered by the sentencing judge, it is not necessary that findings be made in any particular terms. When regard is had to her Honour’s reasons as a whole, her Honour not only took into account the applicant’s prospects of rehabilitation, but also assessed them as being real, and not merely theoretical, and made appropriate allowance for this factor in determining the length and structure of the sentence. This assessment is consistent with her Honour’s finding that there was a risk that the applicant would re-offend, which gave rise to a particular need for rehabilitation: [72]-[73] (Adamson J); [81], [115] (N Adams J).

Meoli v R [2021] NSWCCA 213, applied.

6. Per N Adams J: Her Honour’s conclusion that she was not satisfied that the applicant was unlikely to re-offend was a factual finding open on all of the material before her, and was not inconsistent with Dr Furst’s opinion that he had an “average/below average” risk of re-offending. [109]-[110].

7. Per Brereton JA (dissenting): The sentencing judge erred in failing to find that the applicant had at least reasonable prospects of rehabilitation and was unlikely to reoffend. Such a finding would be consistent with the expert psychiatric evidence of Dr Furst, which was not based significantly on any controversial history obtained from the applicant, and his unchallenged opinion in those respects ought not have attracted the “significant caution” which the sentencing judge gave it: [41]-[42].

R v Holdom [2018] NSWSC 1677, distinguished; SW v R [2013] NSWCCA 103, applied.

As to whether the sentence imposed was manifestly excessive:

8. Per Brereton JA; Adamson J; and N Adams J: Having regard to the seriousness of the offending conduct and the substantial aggravating factors as well as the matters in mitigation, the sentence imposed was not manifestly excessive: [43] (Brereton JA); [77] (Adamson J); [126] (N Adams J).

Judgment

1. BRERETON JA: On 3 July 2019, the applicant John Baker was convicted by a jury following trial in the District Court of three counts of aggravated indecent assault (victim with a cognitive impairment) (Crimes Act 1900 (NSW) s 61M(1); maximum penalty 7 years imprisonment, standard non-parole period 5 years), and five counts of aggravated sexual intercourse without consent (victim with a cognitive impairment) (Crimes Act 1900 (NSW) s 61J(1); maximum penalty 20 years imprisonment, standard non-parole period 10 years). On 10 July 2020, he was sentenced to an aggregate term of imprisonment of 19 years (expiring on 1 October 2038), with a non-parole period of 13 years and 4 months (expiring on 1 February 2033), both dating from 2 October 2019.¹ Concurrently, a bond to which he was subject was revoked and he was resentenced to a fixed term of imprisonment for 9 months commencing on 3 June 2019, when he had been taken into custody; the practical effect was that the aggregate sentence was accumulated by four months on the fixed term imposed upon call-up of the bond. The applicant applies, pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(c), for leave to appeal against the sentence.

The offending

2. The following summary is based on that contained in the Crown’s written submissions.

3. At about 10 pm on 30 January 2017 the victim, who was aged 17 years and 7 months and suffered from a cognitive impairment and mild intellectual disability, decided to run away from her stepmother’s house where she was staying. She was dressed in her sleepwear (though it was not obviously so), and took with her her mobile phone, a handbag and a water bottle. As she walked along Camden Valley Way, Elderslie, the applicant drove past her and offered her a lift. She repeatedly declined, until he said that he was going to a petrol station, whereupon she entered the vehicle, occupying the front passenger seat. The applicant drove to a BP service station at Narellan, and engaged in conversation with the victim as he filled the car with petrol.

4. The victim asked him to drop her off near the highway, so she could continue walking. He drove past the highway, and she asked him to stop and let her go, but the applicant said he was going to the same place she was. However, he drove to the Menangle River Reserve, where they arrived at about 11pm, parking near the gates; there were no other vehicles or people present. They exited the car, and he took her hand and they walked down a steep path to the lake. The victim removed her shoes and stood in the water, just above her ankles. While she was looking away from him, the applicant removed all his clothes. He then approached the victim and told her to remove her clothes. She refused and said that she would swim in what she was wearing.

5. The applicant attempted to remove her pants, and she kept saying “No”. He placed his hands down the front of her pyjama pants and touched the outer side of her vagina, on top of her underwear (Count 1: Aggravated indecent assault – s 61M(1)). She removed his hand, and repeatedly told him to stop. The applicant then forced her to the ground, so that she was lying on her back, half in the water and half on the sand. He removed her pyjama top and said that he just wanted some fun. She said, “I don’t want this”, but the applicant proceeded to remove her pants and underwear. She pleaded with him to stop, including telling him that she was a virgin. The applicant fondled her breasts (Count 3: Aggravated indecent assault – s 61M(1)). He then digitally penetrated her vagina with a number of fingers (Count 5: Aggravated sexual assault – s 61J(1)). She continued to plead with him to stop, saying “No” and, “I am not ready for this”. The applicant became more physical and “a little bit more violent”, trying to kiss her as she lay on her back. She said “No”, and tried unsuccessfully to get away from him, but he had “a real good grip” on her; she felt really scared. The applicant forced her hand onto his penis as she continued to say “No” (Count 7: Aggravated indecent assault – s 61M(1)). She tried unsuccessfully to pull her hand away, but he maintained his “real good grip”, with one hand on her waist and the other on her arm. He then forced her to suck his penis for approximately five minutes; she complied, in the hope that it would stop him from further assaults (Count 9: Aggravated sexual assault – s 61J(1)). While sucking the applicant’s penis, she started to feel sick. She asked if what she was doing was normal, and said that she did not want to do it anymore. The applicant then made her get on her hands and knees in the sand, and out of fear she complied. He grabbed her hand, causing her to fall against the sand, spread her legs and forced her buttocks against his body. She said she did not want to do what was coming, but he inserted his penis into her vagina (Count 11: Aggravated sexual assault – s 61J(1)). Then he got the victim to lie down a little, and inserted his penis into her anus while still holding onto her (Count 13: Aggravated sexual assault – s 61J(1)). She was scared. He continued to thrust his penis in and out, ignoring her pleas to stop, including that her dad “will not be happy” with him. She later told police that it hurt. She estimated that this continued for 15 to 20 minutes, but acknowledged that she “is not that good with time”. As he had anal intercourse with her, the applicant grabbed the victim’s breasts and buttocks, telling her that she had a “nice arse”, and touched, pressed, and inserted his fingers into her vagina (Count 15: Aggravated sexual assault – s 61J(1)). The applicant ejaculated into her anus, and then dragged her into the water up to her chest. The sentencing judge found that he did so to remove physical evidence.

6. A short time later, the applicant heard voices coming from the parking lot. He told the victim to get dressed and they took a different track back to the car, because he did not want to get caught. The applicant again refused the victim’s request to be taken to the highway, and drove towards a Hungry Jack’s restaurant in Campbelltown, but refused to drop the victim there because he said that he did not trust “those men”, referring to a group of teenagers who were present. Instead, he dropped her in a dark secluded location on Menangle Road behind a Bunnings Warehouse store. He told her “not to tell anybody what happened, not to tell dad or the police or anybody what happened”.

7. The victim contacted her father as she walked towards Macarthur Train Station. She sounded frightened, and was crying and very upset. She told her father that “something bad happened to me” and that “a man has done something to me”. When her father, stepmother and police found her, she was dirty, shaking, scared and appeared to have been crying. She told a police officer that her vagina and buttocks were very sore. She was conveyed to hospital by ambulance, where a doctor observed acute fresh blood and intermittent bleeding to the vagina, fresh tears flushed with blood (including to the hymen); a tear, four abrasions and a burst blood vessel to the skin; and an acute tear to the anus. The doctor was of opinion that the injuries were sustained from blunt force trauma likely caused by non-consensual sexual intercourse.

8. A sexual assault identification kit was conducted, and was later found to match the applicant’s DNA profile. The applicant was arrested on 30 April 2017. He participated in an electronically recorded interview in which he denied the offences and said that he had gone to a river (not the Menangle River) on his own the night before, and that no one else had been in the car with him.

9. The applicant pleaded not guilty, maintaining that the intercourse with the victim was consensual and that he had taken steps after the event to ensure her safety. During the trial, the applicant accepted that he had lied to police during the recorded interview, and gave evidence that he did not perceive the victim to have a cognitive impairment, and that he believed that the sexual intercourse was consensual, the victim (on his account) having said “yes” when he asked if she wanted to have sex, told him that she liked the anal intercourse and asked, at one point during the sexual intercourse, if she could be on top. This was plainly disbelieved by the jury which, on 3 June 2019, convicted him on all counts.

The applicant’s subjective case

10. The applicant was 31 years old at the time of the offences and 35 when he was sentenced. At the time of the offence, he was subject to a bond pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), s 12, for break enter and steal, and a bond pursuant to s 10(1)(b) of the Sentencing Act, for possess a prohibited drug, both committed in 2016. ^[1] He had no other prior convictions. His parents had separated when he was 5, and he was raised by his mother; he had a strained but not abusive relationship with his father. At school, he was a below average student, with a short attention span; after completing Year 10 he undertook one year of study at Tocal Agricultural College. He obtained regular employment as a farrier. He has four children, from three relationships; the fourth was born after his arrest.

    1. Her Honour also took into account an earlier period of pre-trial custody of 101 days, meaning that the total effective sentence was in fact 19 years 3 months 11 days, the non-parole period 13 years 7 months 11 days.

11. On 11 December 2011, when he was 26, he was kidnapped and repeatedly beaten with a block splitter over a period of five hours by a member of a notorious crime family, sustaining a number of injuries. He and his mother thereafter went into hiding for a year. In late 2016, he was seen by Dr Bowen, who assessed him as suffering from depression, anxiety and stress and exhibiting symptoms indicative of PTSD. He told Dr Furst, psychiatrist, who saw him for the purposes of the sentencing proceedings, that he did not have a history of excessive drinking , but “dabbled” in drug use when aged 18 to 19, increasing after the incident of 2011, using methylamphetamine (ice) up to daily in 2012, and between 2012 and 2017 used approximately 0.1g of ice, two or three times a week, and also intermittently cocaine and “pills”. Dr Furst diagnosed PTSD and substance abuse disorder (in remission). He expressed opinions that:

1. the applicant suffers from PTSD, a severe and chronic anxiety disorder that develops following exposure to traumatic events, in his case the experience of being tortured and fearing that he would die;

2. he would have considerable difficulty controlling his symptoms, which have affected his ability to carry out everyday tasks, his capacity to relate to other people and his ability to socialise. In this he concurred with Dr Bowen;

1. the major relevance of his use of methamphetamine at the time of the offending – reportedly 0.1 to 0.2 grams the previous day and two days prior – was probably a predictable increase in libido, which is a common side effect;

2. more likely than not, his behaviour was impulsive, opportunistic and at least partly the product of his mental disorder and associated impairment in psychosocial functioning, in that his PTSD and associated conditions probably exerted a negative impact on his judgment, including making him more impulsive or inclined to make poor decisions;

3. while his maintenance that the intercourse was consensual made it difficult to draw categorical conclusions in mitigation, his risk of re-offending was low according to the Static-99R test, having regard to his developmental and psychiatric history, his relationship status, previous employment, absence of a major mental illness, and absence of an obvious personality disorder, of any apparent sexual deviance or of any history of sexual offences; and

4. a custodial setting would likely be more onerous for him than for the average inmate, including an increased likelihood of exposure to violent incidents, increased anxiety and destabilisation of his PTSD; and less access to appropriate care.

12. Dr Furst concluded that when due regard is given to the “most important protective factors including his ongoing de facto [marital] relationship, solid history of employment, the absence of any sexual deviance, a marked reduction in his drug use over recent years, and [the offender’s] pattern of seeking and engaging in psychological help”, the offender presents with “good prospects of being successfully rehabilitated”.

The remarks on sentence

13. The case was left to the jury on the alternative bases that the applicant actually knew, or was reckless as to whether, the victim had a cognitive impairment. The sentencing judge found actual knowledge. Her Honour also found that there was some albeit a limited degree of planning and that the applicant’s acts in awareness of the victim’s vulnerability were predatory; that he knew that the victim did not consent; and that the offending was committed continuously over a period of between 20 and 30 minutes. Her Honour found that the offences were further aggravated by the victim’s age, and by the fact that the applicant threatened her when he said not to tell anyone about what had happened following the offences. Her Honour took into account, as an aggravating factor, that the applicant was at conditional liberty, being the bonds to which reference has been made. As a mitigating factor, her Honour took into account that he had limited prior convictions, and none for violent or sexual offending. However, her Honour did not accept that he was unlikely to reoffend, finding that there was a risk that he might reoffend. Nor did her Honour find any evidence of remorse.

14. The following table, adapted from that contained in the Crown’s submissions, summarises the particulars of each count, the sentencing judge’s findings of objective seriousness, the applicable maximum penalties and standard non-parole periods, and the indicative sentences stated by her Honour:

Count	Offence	Finding of objective seriousness	Maximum penalty (SNPP)	Indicative Sentence (NPP)
Count 1	Aggravated indecent assault – victim has cognitive impairment - s 61M(1): The applicant touched the outer side of the victim’s vagina.	Just below the mid-range	7 years (5 years)	5 years 8 months (4 years)
Count 3	Aggravated indecent assault – victim has cognitive impairment - s 61M(1): The applicant fondled the victim’s breasts.	Below the mid-range	7 years (5 years)	5 years (3 years 6 months)
Count 5	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): The applicant digitally penetrated the victim’s vagina with a number of fingers.	Just below the mid-range	20 years (10 years)	11 years 5 months (8 years)
Count 7	Aggravated indecent assault – victim has cognitive impairment - s 61M(1): The applicant forced the victim to touch his penis as she continued to say no. She attempted to pull her hand away but was unable to because the applicant was holding onto her.	About the mid-range	7 years (5 years)	6 years 4 months (4 years 6 months)
Count 9	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): The applicant forced the victim to suck his penis for about five minutes. Whilst sucking the applicant’s penis, the victim started to feel sick and wanted to choke.	Above the mid-range	20 years (10 years)	13 years 7 months (9 years 6 months)
Count 11	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): The applicant made the victim get on her hands and knees on the sand, grabbed her hand, causing her to fall into the sand, before spreading her legs and forcing her buttocks against his body. He inserted his penis into her vagina, while the victim held onto the ground and braced herself for pain.	Above the mid-range	20 years (10 years)	15 years 9 months (11 years)
Count 13	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): The applicant inserted his penis into the victim’s anus while holding onto her. He thrust his penis in and out of the victim, ignoring her pleas to stop. The applicant ejaculated inside the victim’s anus.	Well above the mid-range	20 years (10 years)	17 years 2 months (12 years)
Count 15	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): In the course of the anal intercourse, the applicant touched, pressed and inserted his fingers into the victim’s vagina.	About the mid-range	20 years (10 years)	10 years 9 months (7 years 6 months)

15. Her Honour adjusted the non-parole period to approximately 69% of the head sentence pursuant to a finding of special circumstances, on account that the applicant would likely serve his sentence in protection and would benefit from a longer parole period to gain access to psychological or psychiatric treatment.

The grounds of appeal

16. There were originally six grounds of appeal, to the following effect:

1. That the sentencing judge failed to articulate the indicate sentences as required by Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b). This ground was not pressed;

2. That her Honour erred in finding that the applicant had actual knowledge that the victim was intellectually impaired;

3. That her Honour erred in finding that the chronological age of the victim was an aggravating factor;

4. That her Honour erred in finding that the applicant threatened the victim and in treating that as an aggravating factor;

5. That her Honour erred in finding that the applicant had not established prospects for rehabilitation and that there was no risk of reoffending; and

6. That the sentence was manifestly excessive.

Ground 2 – Actual knowledge of impairment

17. The applicant submitted that the finding that the applicant actually knew that the victim was impaired was unsound. In particular, it was submitted that the applicant had no prior knowledge of her; she was out late at night; they met at night; they had contact over a total period of not much more than an hour, which included obtaining petrol from the service station, walking, the sexual activity, and returning; that there were only short periods of conversation; that the victim could use a mobile phone and send and receive text messages; and that she spoke with an accent. It was also submitted that the sentencing judge conflated the evidence of the experts at trial with the applicant’s own knowledge of the victim’s disability at the time of the offending.

18. The case was left to the jury on alternative bases of actual knowledge and reckless indifference. The sentencing judge, after summarising the evidence relevant to the applicant’s state of knowledge, continued:

“[197] Having watched the victim’s walk-through with the police and her recorded evidence, and having observed her give her evidence at trial I find that it would have been almost immediately apparent to the offender that the victim suffered from a significant cognitive impairment. I mean no disrespect to the victim when I say that she expresses herself in a childish manner, using simple turns of phrase. The manner and content of what she says readily belie her mild intellectual disability. Consistent with the psychological evidence about her mild intellectual disability, the victim obviously presents as much younger than her chronological age.

[198] Notwithstanding the differences as between the circumstances of my observations and those existing at the time that the offender interacted with the victim, the victim’s cognitive impairment is so obvious that the offender could not have failed to have noted it almost immediately upon meeting her. I reject his evidence that he did not appreciate that she was cognitively impaired. I find that he knew this, and that the offender preyed upon this vulnerability when he sexually assaulted the victim.”

19. In making these observations, the sentencing judge enjoyed a position of advantage relative to this Court. The finding, largely based on her Honour’s observations of the victim, was open. Nor does her Honour’s reasoning involve any “conflation” of the expert evidence with the applicant’s state of mind.

20. Moreover, in my opinion, the distinction is of no significance to the applicant’s culpability in the circumstances of this case. It is implicit in the verdict that, at the least, the applicant adverted to the possibility that the victim was impaired and proceeded regardless. This ground fails.

Ground 3 – Chronological age

21. The victim was 17 years and 7 months of age; while not an adult, she was above the age of consent. Sexual intercourse with her was therefore lawful, if it was consensual.

22. The sentencing judge said:

“[211] The victim’s age is a relevant matter. She was only aged 17 years and 7 months at the time of the offence whereas the offender was aged 31 years. Whilst age is not a matter that usually aggravates sexual intercourse without consent where the victim and the offender are strangers, here the victim was still a very young woman. The accused was a mature man. I find that the victim’s age further aggravates the offences, although I have been careful, in this context, not to double count the victim’s intellectual age given her cognitive impairment.”

23. Her Honour’s observation that “age is not a matter that usually aggravates sexual intercourse without consent where the victim and the offender are strangers” reflects what was said by this Court in R v Shortland, ^[2] where it was stated that in cases of non-consensual intercourse between adults, an age differential is usually not relevant. However, as explained in Mohindra v R, ^[3] Shortland is not authority for so general a proposition: the point of Shortland was that the  age gap between the offender (31) and the victim (25) was “immaterial in circumstances where both were young adults”, and that does not imply that the existence of a significant age difference between an older man and a young woman in her teens or a little older would not be highly relevant.

    2. As has been noted, the s 12 bond to which he was subject was revoked and he was resentenced to a fixed term of imprisonment for 9 months commencing on 3 June 2019. No action was taken in respect of the s 10(1)(b) bond.

    3. [2018] NSWCCA 34 at [15] (Basten JA), [87] Hidden AJ).

24. What her Honour saw as relevant was the age discrepancy, observing that “here the victim was still a very young woman. The accused was a mature man”. The relative age of the victim to the applicant was relevant to objective seriousness, because the differential increased the victim’s vulnerability, which was exploited by the applicant. Her Honour did not err in taking that discrepancy into account as relevant to objective gravity. This ground fails.

Ground 4 – Use of threats

25. The sentencing judge said:

“[212] Each of the offences is aggravated by the fact that the offender threatened the victim when he “said not to tell anybody what happened, not to tell dad or the police or anybody what happened” following the offences.”

26. The context makes clear that this consideration informed her Honour’s assessment of the objective gravity of the offences.

27. The applicant’s statement to the victim quoted in that passage was not accompanied by any suggestion that there would be any adverse consequence for the victim if she did not comply. In the Macquarie Dictionary, “threat” is relevantly defined as “a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course”. The statement attributed to the applicant involved no connotation of punishment, pain or loss. There was no connotation of harm if she told anyone, not even an “or else”. Indeed, there was no suggestion that they would ever meet again.

28. The Crown submitted that it was implicit in the applicant’s statement that there would be an adverse consequence, implicitly an “or else”. The Crown also submitted that the absence of any express threat was consistent with the Crown submission, which the sentencing judge accepted, that the applicant did not resort to the level of violence or threats sometimes seen because, given the victim’s vulnerability, it was unnecessary for him to do so.

29. I am unable to agree. If, objectively, there was no threat, then even if that was because it was unnecessary (a matter which is speculative), then there was no threat that could increase the objective gravity of the offending. A mere statement that she should not tell anyone is not a threat; it amounts to no more than a request or direction that she keep what had happened to herself. The victim did not say that she regarded it as a threat, and she did not hesitate immediately to report the offences to her father, and then to police.

30. In my view, it was erroneous to consider that this was a threat, and to use it as a matter informing objective seriousness. This ground succeeds.

Ground 5 – Prospects of rehabilitation

31. As has been noted, it was Dr Furst’s opinion that the applicant had “good prospects of being successfully rehabilitated”, and a low risk of re-offending. However, the sentencing judge concluded:

“[229] Even taking into account Dr Furst’s opinion, on balance, I cannot find that the offender is unlikely to reoffend. The offender’s state of mind and his knowledge of the vulnerability of the victim, together with the number of offences he committed and the fact that he was on two good behaviour bonds, lead me to the conclusion that there is a risk that the offender may re-offend.”

32. Her Honour did not make any express finding about prospects of rehabilitation, which are a mandatory consideration under s 21A(3)(h) of the Sentencing Act.

33. In response to the applicant’s reliance on the report of Dr Furst, the Crown submitted to the sentencing judge that her Honour should exercise “much circumspection in accepting the opinions of Dr Furst”, because his report placed significant reliance on the “untested self-serving statements of an offender, where there are discrepancies in the material”, given that Dr Furst had been “unable to engage with the offender in a meaningful way”, as the applicant continued to deny his culpability. ^[4] For this submission, reliance was placed on the remarks of RA Hulme J in R v Holdom, ^[5] which her Honour considered “apposite to this case”. ^[6]

    4. [2020] NSWCCA 340 at [58]-[59] (Basten JA; Johnson and Davies JJ agreeing).

    5. Remarks on Sentence at [237].

    6. [2018] NSWSC 1677.

34. In Holdom, RA Hulme J observed that for many of the opinions expressed by the psychiatrist whose opinion was relied upon by that offender, it would be necessary to have a detailed and complete account from the offender, and continued:

[107] There are a number of reasons to be cautious about accepting Dr Nielssen’s opinion in relation to a causal link. First, it is an opinion that is based upon an unquestioning acceptance of the offender’s untested account, significantly as to his substance use history and, more significantly as to the circumstances pertaining to the offences.

[108] As to the history of substance use, Dr Nielssen was told that the use of “stimulant drugs” (I assume he was referring to ice) was intermittent until the car accident in September 2008. However, he described to Ms Wyzenbeek a use of such drug that was “problematic” from the age of 32 (2006). The account provided to Dr Nielssen seems to have involved the offender placing particular emphasis on the car accident, claiming that he lost interest in everything and “went on all sorts of drugs”. Dr Nielssen appears to have regarded this as significant, but whether the version he received, or the one Ms Wyzenbeek received, or something altogether different is correct is difficult to say.

[109] As to the circumstances pertaining to the offences, one example is that Dr Nielssen was given an account that Khandalyce was killed because “not turning up with her mum would have raised questions about why her mum was not with her”. What Dr Nielssen might have opined if he had been told that the offender now does not dispute that there was a sexual element to the murder of Khandalyce (in that he was “at least attempting to or planning to sexually assault Khandalyce at the time of her death”) is unknown. It is also unclear whether Dr Nielssen had regard to the child abuse writings, fantasies and admissions described in the Crown Case Statement, a copy of which he was provided.

[110] A related question Dr Nielssen was asked to address in his report was “what psychological process or processes can assist in explaining such a causal connection”. His response does not directly correlate with the present offender’s life in a number of respects and it is a response which I find, with respect, difficult to understand. …

[111] I do not know whether Dr Nielssen was suggesting that the offender in fact had a personality disorder and, if so, that it was “severe”. (I note that when stating his formal diagnoses he qualified the personality disorder diagnosis as “probable” and then discussed the fact that its attributes may be at least partially due to the offender’s pattern of substance use). He referred to the offender’s “turbulent behaviour in foster care” but that is not a description that is borne out by the historical records. Dr Nielssen appears to have proceeded upon the basis that a large proportion of the offender’s upbringing was one of physical, sexual and psychological abuse whereas that was the case up until he was aged 8 or 9 but not so much thereafter, if at all.

[112] Another indication of Dr Nielssen not appearing to focus upon the actual life experience of the offender, particularly after he was aged 8 or 9, appears in his response to a question about cases or research demonstrating childhood abuse and later homicide. In responding to this he referred to the most common condition associated with homicide offences being substance use disorder and to it being also more likely that homicide offenders have a pattern of antisocial conduct beginning in adolescence. If Dr Nielssen was suggesting that the offender in the present case had a pattern of antisocial conduct in adolescence, it is not borne out by any of the objective historical material and certainly not by his criminal record which did not commence until he committed a driving offence at the age of 19 and then an assault at the age of 23.

[113] Another example of Dr Nielssen seeming to have misapprehended the factual material provided to him appears in his explanation for the causal link where in contrasting what he described as the offender’s “turbulent behaviour in foster care” (a conclusion inconsistent with the historical records - see above at [77]) he said the offender’s “life seems to have stabilised by his early twenties, with consistent employment and marriage”. The factual material provided to Dr Nielssen showed that in his twenties the offender was in a marriage that might have offered stability for a while but it ended when (as the offender described it in his writings his wife “gave up trying to keep me on the straight and narrow” because she could not cope; he described how he had:

“[H]ooked up with the wrong crew and started getting into the drugs heaps and fighting and constant run in’s with the law again”.

[114] I note as well that the offender told Ms Wyzenbeek that this marriage, which he said commenced in approximately 1994 (when he turned 20) and lasted for about five years involved violence by the offender towards his partner on multiple occasions.

[115] Dr Nielssen also appears to have accepted the offender’s accounts of how and why he killed Karlie and Khandalyce whereas such accounts were inaccurate and deficient in the ways I have earlier described.

[116] As a result of all of this, I find that it is not possible to have regard to the opinions expressed by Dr Nielssen as to how the offender’s experience in childhood might bear upon his commission of the two murders.

35. Dr Furst’s opinion that the applicant was unlikely to reoffend was expressed as follows:

“In relation to Mr Baker’s risk of re-offending in a sexual manner, consideration was given to the nature of the offences in question, his developmental and psychiatric history, relationship status, previous employment status, the absence of a major mental illness such as schizophrenia and the absence of an obvious personality disorder. The victim of his offences was a female who was not related and was not previously known to him. There was no apparent sexual deviance and no prior history of sexual offences.

Actuarial assessment of risk factors to the STATIC-99R, despite intrinsic limitations on predictions of risk of re-offending at the individual level, assist in identifying the likelihood of persons with histories and characteristics similar to those of Mr Baker committing a further sexual offence.”

36. Applying the STATIC-99R instrument, Dr Furst concluded:

“Mr Baker scores 1 on the Static-99R, placing him in a group of adult male sex offenders considered to be at a low risk of reoffending based on the actuarial (static) measure of the Static-99R.”

37. That evaluation does not appear to be based, at least significantly, on any controversial history obtained from the applicant. Dr Furst’s opinion was based upon evidence of the events which initiated the applicant’s PTSD, assessments made by other clinical psychologists on clinical testing; his own clinical testing of the applicant; and the applicant’s criminal history and custodial records. It did not substantially depend on the applicant’s untested assertions.

38. It will be noticed that in Holdom, RA Hulme J set out with some particularity instances in which Dr Nielssen’s assumptions did not reflect any history proved by evidence. In the present case, her Honour said:

“[241] The Crown submits that ‘any causal link between a diagnosis of PTSD and the offending has not been adequately established’. That submission is premised on the Crown’s assertion that ‘the offender has provided some false and/or exaggerated information to Dr Furst which has been accepted unequivocally’. So much bears similarities with the deficiencies of Dr Nielssen’s report in R v Holdom.

[242] I do not apprehend the offender to suggest that there is any causal link between his diagnoses and his offending. Accordingly, I accept the Crown’s submission and approach the untested evidence in Dr Furst’s report with significant caution.”

39. Unlike RA Hulme J in Holdom, her Honour did not proceed to evaluate the Crown’s “assertion that ‘the offender has provided some false and/or exaggerated information to Dr Furst which has been accepted unequivocally’”, nor identify respects in which it was correct. In any event, her Honour’s observation was made in the context of a potential link between the applicant’s PTSD and his offending, and not in the context of prospects of rehabilitation.

40. I agree with the applicant’s submission that Holdom has limited relevance in the circumstances of this case. There is a fundamental distinction in this respect between a psychiatrist’s opinion based upon his observations and expertise, and opinions that depend on the offender’s untested history. ^[7] At least so far as it concerned an assessment of rehabilitation prospects and risk of reoffending, Dr Furst’s opinion did not depend substantially on untested history. It was in the context of whether any psychological condition contributed to his offending, that Dr Furst reported:

“Mr Baker maintains that his sexual intercourse with the complainant /victim on the night in question was consensual, making it difficult to provide categorical conclusions in relation to mitigating factors. Nevertheless, he has a well-documented history of post-traumatic stress disorder, was engaged in regular psychological treatment over the previous 4-5 months and had ongoing debilitating symptoms of PTSD, associated with depression, anxiety and high levels of stress.”

7. Remarks of Sentence at [237].

41. In my view, the comments in Holdom were substantially not apposite in the context of Dr Furst’s opinion about prospects of re-offending and rehabilitation, which was not dependent on untested history and therefore not undermined by such dependence. His unchallenged opinion in those respects ought not have attracted the “significant caution” which the sentencing judge gave it.

42. No doubt the applicant’s maintenance of his innocence is a confounding factor, but it is not inconsistent with good prospects of rehabilitation. Dr Furst’s opinion is consistent with the fact that the applicant had no prior record for similar offending, his previous offences having been of quite a different nature; that his offending involved a single course of conduct; that his custodial history was uneventful; that he had sought psychological assistance; and that many character witnesses described the applicant’s offending as “out of character”. The sentencing judge relied on the “number of offences” as indicating the contrary, but they were all part of a singular sexual encounter. Her Honour also referred to the fact that he was on bonds, but they were for very different offences. In my judgment, the sentencing judge erred in failing to find that he had at least reasonable prospects of rehabilitation and was unlikely to reoffend.

Ground 6 – Manifest excess

43. As I have found that the applicant succeeds on two specific grounds, it is necessary that he be resentenced, and unnecessary to address in detail the complaint of manifest excess. Many of the matters raised under the rubric of manifest excess are relevant to resentencing and are addressed there. It suffices to state that though my instinctive reaction was that the sentence was a severe one, I am unpersuaded that it was manifestly excessive.

Resentencing

44. The facts of the offending, and the subjective factors, have been set out above. Subject to the qualifications required by the above findings, I accept and adopt the sentencing judge’s findings of fact. However, my view of the objective gravity of each offence differs from that taken by her Honour, particularly though not solely by reason of the conclusion that each offence was aggravated by the applicant having threatened the victim not to tell anybody what happened following the offences. Further, as to the subjective case, I take a more favourable view of the applicant’s prospects of rehabilitation than did her Honour.

45. Before the sentencing judge, and before us on the question of manifest excess, the Crown referred to three cases involving aggravated sexual assault and intercourse without consent, which her Honour said were not “truly comparable” but had some commonalities, in particular that the victim was unknown to the offender; that the offences occurred during one incident and on one occasion; that multiple types of sexual assaults were perpetrated; that there were injuries to genitalia; and that the offender had no prior convictions for sexual offences.

46. In Simmons v R, ^[8] for six counts of aggravated sexual assault (contrary to Crimes Act, s 61J), an aggregate sentence (following a plea of guilty, for which a 25% discount was allowed) of 18 years was quashed as manifestly excessive, and the offender was resentenced to imprisonment for 15 years with a non-parole period of 10 years. (Adjusted for the discount for the plea of guilty, that approximately corresponds to a head sentence following conviction at trial of 20 years). Crossing paths from opposite ends of a road, the offender had seized the victim, whom he did not know, around the neck, dragged her to a river embankment, forced her to the ground, and after a struggle forced a series of sexual assaults upon her. He had no prior criminal record, some Bugmy ^[9] factors, gave evidence and was found to be genuinely remorseful.

    8. SW v R [2013] NSWCCA 103 at [202] (Hall and Davies JJ).

    9. [2019] NSWCCA 20.

47. In Keeley v R, ^[10] for three counts of aggravated sexual intercourse without consent and one of aggravated robbery, an aggregate sentence (following a plea of guilty, for which a 25% discount was allowed) of 15 years was upheld. (Adjusted for the discount for the plea of guilty, that again approximately corresponds to a head sentence following conviction at trial of 20 years). The offender had threatened the 23-year-old victim at knifepoint; the intercourse involved two counts of unprotected penile vaginal penetration and one of digital penetration; the victim did not sustain injuries. The offender took the victim’s wallet and ran from the scene, later shaved his facial hair and attempted to change his name and departed for Bali. He had a prior criminal record, but not for any sexual offence, and had not previously been sentenced to fulltime imprisonment. He had Bugmy factors, and a diagnosed personality disorder.

    10. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

48. In Stephens v R, ^[11] for three counts of aggravated sexual assault and one of aggravated detain for advantage, the offender was resentenced by this Court to an aggregate sentence (following a plea of guilty, for which a 25% discount was allowed) of 18 years (non-parole period 12 years). (Adjusted for the discount for the plea of guilty, that corresponds approximately to a head sentence following conviction at trial of 24 years). The victim, a promotional model, was contracted to attend a private male-only party as a topless waitress. When her shift ended, sometime after 3am, she drove another waitress home, and then headed to her own home, not knowing that the offender, who had been a guest at the party, had concealed himself in the boot. As she drove, he pushed the rear seat forward from inside the boot, placed a hand around her mouth, threatened her with a plastic fork, then forced her to fellate him, to masturbate his penis, and then after verbally abusing her forced her to lie on her stomach while he penetrated her anus with his penis, then forced digital penetration and then penile-vaginal penetration. Then he forced his penis into her mouth to the extent that her breathing was compromised, while simultaneously attempting to insert his fist into her vagina, causing her to scream in paid. Then he again forced anal intercourse upon her, before ejaculating on her face, neck and hair. The victim sustained some injuries, including to her genitals. The offender then took her car, but she escaped through the rear passenger door and caught a taxi to the police station. The offender was 18, had not previously been sentenced to fulltime imprisonment, and had positive prospects of rehabilitation.

    11. [2014] NSWCCA 139.

49. While, as was emphasised for the applicant, there were higher levels of violence used in those cases than in the present, in them it was the infliction of actual bodily harm that provided the aggravating element, as distinct from the present where the aggravating element is that the victim was impaired. Objectively the circumstances of the three cases would appear more terrifying to a hypothetical average victim; but that is not to say that the circumstances of the present offence were any less frightening for this more vulnerable victim, for whose special protection the aggravating element is provided.

50. The applicant referred, before the sentencing judge and in this Court, to Tindall v R, ^[12] in which the offender was sentenced after conviction at trial for a count of aggravated sexual intercourse without consent and one of aggravated sexual assault, to an aggregate sentence of 11 years imprisonment. The offender offered to assist the victim, a homeless woman in a wheelchair, by pushing her wheelchair from a railway station to a taxi rank, having previously assisted her to board the train and offered her accommodation at his place which she had initially accepted but later declined. Instead, he took her to a secluded place, forced her to perform oral sex on him, and rubbed his penis between her breasts. By majority, a finding that the offences were ‘slightly above mid-range’ was not disturbed. Simpson AJA said:

    12. [2010] NSWCCA 93.

“[13] The immediate circumstances of the s 61J offence included the following: the applicant took the complainant to a dark and secluded location under the pretext of taking her to a taxi rank. He forced her head onto his erect and unprotected penis. The complainant resisted, the applicant persisted in applying force. Despite her continued resistance, the applicant attempted to put his penis in her mouth about 30 times. He ordered her to squeeze his testicles, and, over her expressed objection, told her to do so tightly. She complied out of fear for her safety.

[14] There was, in my opinion, no error that disadvantaged the applicant in the assessment of this offence as “slightly above mid-range”.

[15] The same applies to the s 61M offence of aggravated indecent assault. The applicant committed that offence immediately after he had inflicted on the complainant the humiliation and degradation just described, in the same dark secluded location from which the complainant could not hope for rescue. She was completely at his mercy. He compelled her to hold her breasts together while he spat between them and attempted some kind of masturbatory stimulation of his penis between her breasts.

[16] I find no error in the sentencing judge’s assessment of this offence also as “slightly above mid-range”.”

51. Overall in my assessment the totality of the offending in Tindall was much lower than in the present case.

52. I have had regard to the cases referred to above, and to the maximum sentence and in particular the standard non-parole periods for each offence.

53. My assessment of objective seriousness compared to her Honour’s, and the individual sentences I would indicate that I would impose were I sentencing separately for each count, compared to those indicated by her Honour, are set out in the following table:

Count Maximum (SNPP)	Offence	Finding of objective seriousness (Judge’s finding)	Judge’s Indicative Sentence (NPP)	My Indicative Sentence (NPP)
Count 1 7 years (5 years)	Aggravated indecent assault – victim has cognitive impairment - s 61M(1): The applicant touched the outer side of the victim’s vagina.	Somewhat below mid-range (Just below the mid-range)	5 years 8 months (4 years)	4 years (2 years 9 months)
Count 3 7 years (5 years)	Aggravated indecent assault – victim has cognitive impairment - s 61M(1): The applicant fondled the victim’s breasts.	Below the mid-range (Below the mid-range)	5 years (3 years 6 months)	3 years (2 years 2 months)
Count 5 20 years (10 years)	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): The applicant digitally penetrated the victim’s vagina with a number of fingers, whilst the victim continued her pleas for him to stop.	Below mid-range (Just below the mid-range)	11 years 5 months (8 years)	6 years (4 years 3 months)
Count 7 7 years (5 years)	Aggravated indecent assault – victim has cognitive impairment - s 61M(1): The applicant forced the victim to touch his penis as she continued to say no. She attempted to pull her hand away but was unable to because the applicant was holding onto her.	Just below mid-range (About the mid-range)	6 years 4 months (4 years 6 months)	4 years 6 months (3 years 2 months)
Count 9 20 years (10 years)	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): The applicant forced the victim to suck his penis for about five minutes. Whilst sucking the applicant’s penis, the victim started to feel sick and wanted to choke.	About the mid-range (Above the mid-range)	13 years 7 months (9 years 6 months)	9 years (6 years 4 months)
Count 11 20 years (10 years)	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): The applicant made the victim get on her hands and knees on the sand, grabbed her hand, causing her to fall into the sand before spreading her legs and forcing her buttocks against his body. The applicant inserted his penis into her vagina, while the victim held onto the ground and braced herself for pain.	Slightly above mid-range (Above the mid-range)	15 years 9 months (11 years)	10 years (7 years)
Count 13 20 years (10 years)	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): The applicant inserted his penis into the victim’s anus while holding onto her. He thrust his penis in and out of the victim, ignoring her pleas to stop. The applicant ejaculated inside the victim’s anus.	Above mid-range (Well above the mid-range)	17 years 2 months (12 years)	12 years (8 years 5 months)
Count 15 20 years (10 years)	Aggravated sexual intercourse without consent – victim has cognitive impairment - s 61J(1): During the forced anal intercourse, the applicant touched, pressed and inserted his fingers into her vagina.	Below mid-range (About the mid-range)	10 years 9 months (7 years 6 months)	6 years (4 years 3 months)

54. Although each offence (except perhaps Count 15) has its separate and additional criminality, all occurred in a single non-consensual sexual encounter over a period of 20 to 30 minutes. A very high degree of concurrency is appropriately reflected in the sentencing judge’s approach: her Honour’s aggregate sentence of 19 years involved an accumulation of only 1 year and 10 months on the longest individual indicative sentence. Nonetheless, in my view, there must be some accumulation, in particular between Counts 5, 9, 11 and 13; while on the other hand, there should be substantial concurrency between Counts 13 and 15.

55. In my view an aggregate sentence of 15 years is appropriate and proportionate to reflect the totality of the applicant’s offending. Like her Honour, I would find special circumstances, and reduce the ratio of the non-parole period as a portion of the head sentence to approximately 70%, to fix a non-parole period of 10 years and six months.

56. I propose the following orders:

1. grant leave to the applicant to appeal against the aggregate sentence imposed on 20 July 2020 by the District Court;

2. allow the appeal; and

3. quash the aggregate sentence imposed in the District Court on 20 July 2020, and in lieu thereof:

1. impose an aggregate sentence of fifteen years’ imprisonment to commence from 2 October 2019 and expire on 1 October 2034;

2. pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act1999 (NSW), set a non-parole period of ten years and six months, and specify that the earliest date the applicant will be eligible to be released on parole is 1 January 2030; and

3. pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as set out in column 5 of the table in paragraph [53] above.

57. ADAMSON J: I have had the benefit of reading the reasons of Brereton JA in draft and gratefully adopt his Honour’s summary of the facts and the reasons of the sentencing judge. I agree with his Honour that grounds 2 and 3 have not been made out. For the following reasons, I am not persuaded that either of grounds 4 and 5 has been made out. Accordingly, as ground 6, the manifest excess ground, remains, it is necessary for me to address it, which I will do after addressing grounds 4 and 5. For the reasons set out below, I am not persuaded that ground 6 has been made out.

57. All references to legislation in these reasons are, unless otherwise stated, to be taken as references to the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).

Ground 4: whether her Honour erred in finding that the applicant threatened the victim and in treating it as an aggravating factor

59. I understood it to be common ground that a threat by an offender to a victim can be taken into account as an aggravating factor on sentence. The applicant submitted that it was not open to characterise his conduct as a threat since he did not express that failure to comply with his edict that the complainant not tell anyone would have any consequence, whether particular or general.

60. I regard this submission as unduly technical. Whether a form of words amounts to a threat depends not only on the words used but on the surrounding circumstances. After the applicant had sexually assaulted the complainant, he told her not to tell anybody, including her father and the police, what had happened. The context informed the nature of the statement. It was not an invitation to keep the conduct secret because it was private to the participants (one willing, the other unwilling). Rather, in the context of the sexual assault (which, by definition, was perpetrated against the complainant against her will), the edict that she not tell anyone, including her father and the police is capable of being regarded as a threat that there would be consequences if she told anyone in authority (her father or the police). Because the applicant’s conduct was criminal, the statement carried with it the implication that she would suffer adverse consequences at the hands of the applicant if he came to learn that she had told anyone.

61. In order for a statement to amount to a threat, it is not necessary for the precise consequences to be spelled out. Nor is it necessary for the time-honoured words, “or else”, to be added at the end of the prohibition. All that is necessary is that there be something to indicate to the recipient of the edict that non-compliance will bring adverse consequences. I am satisfied that it was open to her Honour to be satisfied that the applicant’s statement amounted to a threat. On this basis, it was open to her Honour to regard it as a matter which aggravated the sentence. For these reasons, ground 4 has not been made out.

Ground 5: alleged error in finding that the applicant had not established prospects of rehabilitation and that there was no risk of re-offending

62. It is well-established that the risk of re-offending and the prospects of rehabilitation are distinct, but related concepts. A finding in relation to one factor does not equate to a finding on the other. Each factor, in so far as it is relevant, must be considered. Section 21A(3) provides in part:

“Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(g)  the offender is unlikely to re-offend,

(h)  the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

…”

63. Nonetheless, in Meoli v R [2021] NSWCCA 213 (Meoli), Simpson AJA said at [43]:

“Moreover, while accepting that prospects of rehabilitation and unlikelihood of re-offending are ‘separate and distinct’ issues, in many cases the relevant evidence will be, if not co-extensive, then significantly overlapping, and the conclusions in respect of each paragraph may be expected to be consistent. Inherent in the sentencing judge’s expressed doubt about the applicant’s prospects of rehabilitation are equivalent doubts that he will be unable to avoid re-offending …”

64. Ms Kluss, who appeared for the applicant, contended that her Honour had failed to address the applicant’s prospects of rehabilitation and that, accordingly, the sentencing discretion had miscarried, this being a mandatory relevant consideration provided for in s 21A(3)(h).

65. In the course of her oral submissions, I understood Ms Kluss further to contend that her Honour was in error in failing to accept the opinion of Dr Furst that the applicant had a low risk of re-offending. However, ultimately, Ms Kluss accepted that it was open to her Honour to form a different view as the evidence at the sentence hearing was different, in material respects, from the material which was available to Dr Furst when he prepared his report. In particular, her Honour knew that the applicant was on two good behaviour bonds at the time of the offending, whereas Dr Furst was not aware of this fact. I do not regard these matters as fortifying the applicant’s submissions in support of ground 5.

66. In the present case, the sentencing judge specifically addressed the applicant’s prospects of re-offending in the following passage at [229]:

“The offender is unlikely to reoffend — s 21A(3)(g)

Even taking into account Dr Furst’s opinion, on balance, I cannot find that the offender is unlikely to reoffend. The offender’s state of mind and his knowledge of the vulnerability of the victim, together with the number of offences he committed and the fact that [he] was on two good behaviour bonds, lead me to the conclusion that there is a risk that the offender may re-offend.”

67. Although some of the paragraphs in s 21A(3), such as s 21A(3)(g), were given a separate heading, others, such as s 21A(3)(h), were addressed in the reasons generally. However, her Honour extensively addressed the applicant’s need for rehabilitation and how it could be met in the following passages.

68. At [247]-[248], her Honour found:

1. Notwithstanding my finding that the offender’s subjective case is not such that there is any causal link was sufficient to constitute a material contribution to the offending so as to reduce his moral culpability, nevertheless, the offender is a person who I accept was offended against, in a very violent way in 2011. He exhibited PTSD symptoms and turned to drug use. I am satisfied that that included the time of the offending.

2. Accordingly, I find that there is a strong need for the offender’s rehabilitation in these circumstances. In saying this, there is also a need for specific deterrence.”

   69. Her Honour accepted Dr Furst’s opinion about an appropriate treatment plan at [250]-[251] as follows:

“Treatment plan upon release

1. Dr Furst recommended a treatment plan for the offender as follows when released:

   (1)   The offender be placed under the care of his GP, Dr Naser, of Cecil Hills Medical Centre, or delegate, and attends appointments at the frequency as directed, probably monthly in the first instance;

   (2)   The offender attends appointments with his treating psychologist, pursuant to a mental health care plan, probably fortnightly in the first instance, in relation to ongoing treatment of his PTSD, depression, anxiety and stress, with a focus on Cognitive Behaviour Therapy (‘CBT’), mindfulness and relaxation techniques and to help him improve his coping skills under stress;

   (3)   The offender attends appointments with a treating psychiatrist, as allocated, at the frequency as directed, probably monthly in the first instance, in relation to his future treatment needs;

   (4)   The offender accepts medications as directed by his treating doctor(s), probably a trial of an antidepressant medication such as Lexapro (Escitalopram) 10 to 20 milligrams orally daily;

   (5)   The offender engages in drug and alcohol counselling, as clinically indicated, with a focus on relapse prevention, Attendance at AA/NA sessions may also be of assistance;

   (6)   The offender engages in vocational, social or therapeutic interventions as deemed necessary by his treating doctor/treating psychiatrist, such as vocational training and programs to assist him in re-entering the workforce.

2. I have had regard to that plan when considering the offender’s prospects of rehabilitation and likelihood of reoffending. Insofar as those considerations are concerned, my view is that the treatment plan should be implemented upon the offender’s release.”

   70. At [275], her Honour said, in part:

“… I must also be careful to ensure that I am advertent to any effect that the accumulation of sentences might have on the statutory ratio and the offender’s ability to rehabilitate and reintegrate into the community. …”

71. At [276], her Honour said:

“I have made a finding of special circumstances, such that the ratio between the non-parole period and the aggregate head sentence has been adjusted to a small extent. In accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I indicate that my reasons for this finding are that the offender will likely serve his sentence in protections and will benefit from a longer term of supervision on probation in order to gain access to psychological or psychiatric treatment.”

72. The effect of her Honour’s reasons is that her Honour considered the applicant had a need for rehabilitation and had some prospects of rehabilitation such that it was appropriate to make a finding of special circumstances to permit the treatment plan, to further such prospects, to be implemented during the parole period. When regard is had to her Honour’s reasons as a whole, I am persuaded that not only did her Honour take into account the applicant’s prospects of rehabilitation, but also that her Honour assessed them as being real, and not merely theoretical, and made appropriate allowance for this factor in determining the length and structure of the sentence. This assessment is consistent, in the sense referred to by Simpson AJA in the extract set out above from Meoli, with her Honour’s finding that there was a risk that the applicant would re-offend. This risk gave rise to a particular need for rehabilitation, which was addressed by her Honour as set out above.

73. It is important that this Court not adopt a mechanistic approach to the factors in s 21A(2) or (3). The sentencing discretion requires much more than a tick-a-box process whereby each of the matters listed is referred to. The factors are inter-related, as Simpson AJA observed in Meoli of the risk of re-offending and the prospects of rehabilitation, and need to be considered as a whole as part of the instinctive synthesis. As long as it is evident from the reasons that relevant matters (such as, in this case, prospects of rehabilitation) have been considered by the sentencing judge, it is not necessary that findings be made in any particular terms. Each case will give rise to different issues. It is a matter for the sentencing judge how he or she chooses to explain the exercise of the sentencing discretion and to indicate the factors taken into account and the matters bearing on such factors. I discern no error in her Honour’s approach or in the expression of the reasons for the sentence. Indeed, her Honour’s consideration of the appropriate treatment plan indicates a particular concern for the applicant’s rehabilitation and for structuring the sentence in a way which serves to advance it and thereby reduce the risk of re-offending.

74. For these reasons, I am not satisfied that ground 5 has been made out.

Ground 6: alleged manifest excess of sentence

75. Where specific error has been found, this Court is obliged to re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ). It follows that a ground of manifest excess ought only be considered if no other error has been established. As I am not satisfied that any of the grounds which have been pressed have been made out, it is necessary for me to address ground 6.

76. The question whether a sentence is manifestly excessive is a conclusion which does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).

77. Having regard to the seriousness of the offending conduct and the substantial aggravating factors as well as the matters in mitigation, I am not satisfied that the sentence imposed was manifestly excessive. Further, I do not regard the indicative sentences as pointing to that conclusion, in so far as they are capable of shedding light on the sentence imposed: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40](11) (R A Hulme J, Hoeben CJ at CL and I agreeing). In these circumstances, I am not satisfied that ground 6 has been made out.

Proposed orders

78. For the reasons given above, I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

79. N ADAMS J: I have had the significant advantage of reading both the reasons of Brereton JA and Adamson J in draft. I agree with the orders proposed by Adamson J.

80. I agree with Brereton JA that grounds 2 and 3 have not been made out for the reasons provided by his Honour. I gratefully adopt his Honour’s summary of the proceedings on sentence and the relevant objective and subjective factors.

81. I agree with Adamson J that ground 4 has not been made out for the reasons provided by her Honour. I also agree with Adamson J that grounds 5 and 6 have not been made out for the reasons provided by her Honour but wish to provide some additional reasons for my agreement on those two grounds.

Ground 5: prospects of rehabilitation and risk of re-offending

82. This ground of appeal was expressed in this way:

“Her Honour erred in finding the applicant was (sic) had not established prospects for rehabilitation and that there was no risk of reoffending.”

83. There are in fact two complaints made under this ground. The first concerns the finding that the applicant had not established “prospects for rehabilitation”. As was accepted during oral submissions, contrary to the framing of this ground, although her Honour made a finding about the risk of re-offending, she did not make a separate finding as to his prospects of rehabilitation.

84. The second complaint under this ground suggests that her Honour erred in finding that there was no risk of re-offending. Her Honour’s finding as to the applicant’s risk of re-offending was as follows:

“[229] Even taking into account Dr Furst’s opinion, on balance, I cannot find that the offender is unlikely to reoffend. The offender’s state of mind and his knowledge of the vulnerability of the victim, together with the number of offences he committed and the fact that he was on two good behaviour bonds, lead me to the conclusion that there is a risk that the offender may re-offend.”

(Emphasis added.)

85. The real complaints made under this ground are that her Honour should have found both that the applicant had good prospects of rehabilitation and that he had a low risk of re-offending given the contents of Dr Furst’s report; that is, the applicant contends that it was not open to her Honour to find otherwise. I will deal with these two complaints separately. They both rely heavily on the reports of Dr Richard Furst which renders it necessary to consider his opinion in some detail.

Dr Furst’s report

86. Dr Furst is a highly experienced forensic psychiatrist. He provided a detailed report dated 20 October 2019 addressing wide-ranging subject matter. The Crown objected to numerous conclusions drawn by Dr Furst in his first report (AB 335) so he produced a second report dated 4 December 2019. In his first report, Dr Furst opined that the applicant’s conduct was partly driven by his underlying conditions. In his second report, he changed this opinion and opined that the offending was “not driven by his mental disorder (PTSD and depression)”.

87. Dr Furst’s reports relied heavily on self-reporting by the applicant. The only other material he was provided with was the Crown case summary; the applicant’s criminal history (although he does not appear to have been advised that the present offending occurred whilst the applicant was the subject of two good behaviour bonds); files from Dr Daniel Bowen (relevant to his diagnosis of PTSD); files from Mr Hasan Cinar, Mindways Psychological Services (relevant to his diagnosis of PTSD); and Justice Health medical records.

88. One of the areas explored by Dr Furst in his first report was “Offence related issues.” Under that heading, Dr Furst set out the applicant’s version of events which included that the sexual intercourse with the victim was consensual, that he did not notice any cognitive impairment, that they held hands as they left the scene, that he had taken steps after the sexual intercourse to ensure her safety and that when the victim’s father called her whilst they were at the Menangle Park reserve the applicant said to her, “why don’t you give him a call to say you’re okay or send a message?” Dr Furst’s opinion was thus based on a completely different account of the offending than that upon which he fell to be sentenced; a version clearly rejected by the jury.

89. After summarising the material provided to him, Dr Furst addressed the 13 specific questions on which his opinion was sought. Of those, questions 1 and 2 pertained to the applicant’s level of intelligence, questions 3 and 4 pertained to his PTSD symptoms, question 5 pertained to his methamphetamine use, questions 6-8 were unanswered and question 9 sought a diagnosis (PTSD and substance abuse disorder in remission). Question 10 asked whether the applicant’s psychological condition contributed to his offending to which Dr Furst responded as follows:

“Mr Baker maintains that he sexual intercourse with the complainant/victim on the night in question was consensual, making it difficult to provide any categorical conclusions in relation to mitigating factors. Nevertheless, he has a well-documented history of post-traumatic stress disorder, was engaged in regular psychological treatment over the previous 4-5 months and had ongoing debilitating symptoms of PTSD, associated with depression, anxiety and high levels of stress.

Those psychological factors and symptoms and his PTSD have been associated with regular drug use [methylamphetamine], periods of suicidal ideation and other maladaptive patterns of behaviour, including excessive gambling.

Therefore, I am of the opinion that it is more likely than not that his offending when chancing upon the teenage female victim whilst driving was impulsive, opportunistic and was at least partly the product of his mental disorder and associated impairment in psychosocial functioning.”

(Emphasis added.)

90. It was the third of these three paragraphs which Dr Furst changed in his second report.

91. Question 11 concerned conditions in custody and question 12 sought details of treatment options (which were ultimately extracted in some detail in her Honour’s reasons). The final question asked of Dr Furst was whether there were any “other issues” he considered relevant. It was under this question that Dr Furst addressed the question of the applicant’s “risk of reoffending”. Applying the STATIC-99R actuarial assessment tool, Dr Furst opined that the applicant received a score of 1. Although Dr Furst initially described this score as placing the applicant in a category described as “low risk of reoffending”, he went on to acknowledge the following:

“The authors of the STATIC-99R have also adopted nominal risk levels over recent years. According to nominal risk classification, a score of 1 would equate to Group III or ‘Average’ risk relative to the average male sex offender released to the community.”

(Emphasis added.)

92. Dr Furst provided a footnote to this paragraph referencing the “Static-99 Coding Manual 2016 - in press”. Although in the original Static-99R risk assessments total scores would translate into one of four risk categories (low, moderate-low, moderate-high, and high), in 2016 the authors of the Static-99R adopted nominal risk classification with the following five Static-99R risk categories now applicable: Level I – very low risk (scores of - 3 to -2); Level II – below average risk (scores of - 1 to 0); Level III – average risk (scores of 1 to 3); Level IVa – above average risk (scores of 4 to 5); and Level IVb – well above average risk (scores of 6+).

93. Thus, although Dr Furst initially described the applicant’s score as a “low risk of offending”, he then went on to state that under the revised Static-99R risk levels his score of 1 equates with that of average risk. After considering the average rate of recidivism in Canada, the United States, United Kingdom and Australia, Dr Furst went on to opine that:

“… prior to dynamic analysis and consideration of other protective factors, the score of 1 on the Static-99R means Mr Baker’s risk of re-offending falls around the average to below average level compared to other sexual offenders in NSW, i.e. approximately 8-12% risk of re-offending within five years of release.”

94. Dr Furst then went on to add the following:

“The most important protective factors include his ongoing de facto [marital] relationship, solid history of employment, the absence of any apparent sexual deviance, a marked reduction in his drug use over recent years, and Mr Baker’s pattern of seeking and engaging in psychological help in relation to his PTSD and prior drug use issues, giving him good prospects of being successfully rehabilitated.”

(Emphasis added.)

95. I pause to note that the various risk categories and the change in their descriptions was never explained to her Honour. The focus of the submissions before her Honour concerning Dr Furst’s report was as to any causal connection between his mental condition and the offending and identification of the discrepancies as between what the applicant told Dr Furst and other people.

Crown challenges to Dr Furst’s report before the sentencing judge

96. In the Crown written submissions on sentence dated 22 April 2020 numerous objections to Dr Furst’s reports were raised, including those aspects pertaining to the applicant’s intellectual ability and Dr Furst’s assessment of the victim’s functioning. Those portions of his report were not pressed on behalf of the applicant given the objections.

97. The nub of the criticism of Dr Furst’s reports by the Crown was that much of the material relied upon by Dr Furst had come from the applicant and was both untested and inconsistent with accounts given to other people. In that context, the Crown relied upon the following principles summarised by Wilson J (with whom Hoeben CJ at CL and RA Hulme J agreed) in Imbornone v R [2017] NSWCCA 144 at [57] extracted in the written submissions before the sentencing judge as follows:

“[57] This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities:

1. Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58] – [59].

2. Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25].

3. It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

4. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]–[19].

5. Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, ‘to treat this evidence with anything but scepticism represents a triumph of hope over experience’: R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].”

   98. The Crown written submissions went on to submit that the applicant had provided false and/or exaggerated information to Dr Furst which had been accepted unequivocally for the purpose of the report. It was submitted that the court should exercise much circumspection in accepting the opinions of Dr Furst in circumstances where he had been unable to engage with the offender as to his reasons for the offending or the facts of the offending in any meaningful way. It was in this context that the Crown cited the decision in R v Holdom [2018] NSWSC 1677.

   99. In supplementary written submissions dated 9 June 2020 the Crown summarised the relevant principles in relation to expert evidence including the (uncontroversial) submission that the court is not bound to accept the opinions of an expert. Numerous specific complaints were then directed to Dr Furst’s reports which can be summarised as follows:

   1. Dr Furst changed his opinion as to whether there was any link between the applicant’s PTSD and the offending between his first and second reports;

   2. The applicant’s report to Dr Furst that he had ingested methamphetamine on the night of the offending had never been raised before which raised doubts as to the applicant’s credibility;

   3. Dr Furst was not provided with any of the trial material, including the victim’s evidence, and was thus unaware of the gravity of the offending or the applicant’s culpability. He was not made aware of how the victim presented. He opined about the offender’s understanding of her in the absence of any evidence from the psychiatrists who gave evidence at trial or even their reports;

   4. In his first report Dr Furst assessed the applicant’s intelligence without administering any tests and whilst conceding it was outside of his domain. He did so in the absence of the applicant’s evidence at trial. The applicant admitted in his evidence to leaving out details in his interview and lying to police;

   5. The applicant exaggerated the injuries he received in the kidnapping to Dr Furst when compared with other records;

   6. The applicant’s reporting of his PTSD symptoms to Dr Furst were not consistent with what he told Dr Bowen and Mr Cinar;

   7. Although Dr Furst opined that the applicant’s PTSD symptoms affected his ability to carry out his everyday tasks and activities of living, that was completely inconsistent with the character references put before the court; and

   8. Dr Furst’s opinion that the applicant has a pattern of seeking out psychological help in relation to his PTSD and prior drug use issues was inconsistent with the reports of Dr Bowen. It was submitted that that documentation showed that the applicant intermittently sought assistance as prompted by his legal troubles while failing to continue follow-up treatment by way of the medication and counselling.

   100. I have summarised the challenges to Dr Furst’s report in some detail as I consider it important to note that her Honour’s observations in relation to Dr Furst were made in the face of very detailed submissions identifying the Crown’s problems with his report.

Sentencing judge’s observations regarding Dr Furst’s reports

101. Her Honour made a number of references to Dr Furst’s report in her reasons. At [50], she noted Dr Furst’s first report and that it helpfully set out some of the offenders’ antecedents and history. Her Honour then described the circumstances of the applicant’s kidnapping and associated PTSD and depression from Dr Furst’s report in some detail at [54]-[68]. She then considered the applicant’s mental state at the time of the offending, as reported to Dr Furst, from [70]-[79] of her reasons.

102. Later in her reasons (at [123]] her Honour set out the Crown’s submission on sentence including that her Honour should exercise caution before accepting the untested self-serving statements made by the offender to various people including to Dr Furst. She then set out submissions in relation to fact-finding on sentence as to the circumstances of the offending and then stated the following in relation to the report of Dr Furst:

“[133] The Crown may (sic) further submissions about how I should assess Dr Furst’s opinion. Noting that it was not contended for, on behalf of the offender, that his mental condition contributed to the offending in any material way, the Crown submitted a detailed consideration of the material relied upon by Dr Furst, would lead to a conclusion that the opinion should be approached with caution. For example, given issues with the offender’s credibility, his assertions about drug use should not be accepted. The Crown noted that Dr Furst had not been provided with the offender’s evidence at trial. The Crown suggests that there are inconsistencies as between what the offender told Dr Furst and other mental health experts about the events in December 2011. What (sic) the Crown accepts that there is support for the offender suffering symptoms around 2016, evidence about the offender’s treatment in late 2018 in early 2019 indicated that he did not have PTSD symptoms or suicidal thoughts at that time. Clinical notes around that time, the Crown submits, relate to the offender feeling stressed about court, rather than other mental health issues.

[134] The Crown submitted that the offender is an unreliable historian and where an expert opinion is reliant on untested, self-serving statements I should approach such an opinion with the level of caution.”

103. Her Honour then set out the defence submissions on sentence in some detail (at [139]-[171]). In relation to the applicant’s prospects of rehabilitation, her Honour noted that on that issue the applicant relied upon the character references tendered on the applicant’s behalf (at [159]). Her Honour then noted the supplementary written submissions filed on behalf of the applicant on 29 June 2022 as to whether the applicant had taken the prohibited drug ice at during the relevant period. Apart from submissions as to whether the applicant’s mental condition had any impact on the offending (at [161]), counsel for the applicant did not otherwise place significant weight on the evidence of Dr Furst in her submissions.

104. After making her findings in relation to the objective seriousness and aggravating factors, her Honour went on to consider the “mitigating factors” and made the finding in relation to risk of offending I have already extracted above at [84]. She also noted that she could not make a finding of remorse. The sentencing judge then addressed the Crown’s submission as to the report of Dr Furst under a heading “weight to be given to untested evidence” at [237]. In that context Her Honour noted that Dr Furst had been unable to engage with the offender or the facts of the offending in any meaningful way given that the offender maintained an ongoing denial as to his culpability.

105. Her Honour went on to state that she considered the decision in R v Holdom to be apposite to this case and went on to extract [107]-[111] and [115]-[116] of it in her reasons (Brereton JA has extracted those paragraphs above at [34]). After setting out those paragraphs, her Honour noted the following:

“[241] The Crown submits that ‘any causal link between a diagnosis of PTSD in the offending has not been adequately established’. That submission is premised on the Crown’s assertion that ‘the offender has provided some false and/or exaggerated information to Dr Furst which has been accepted unequivocally’. So much bears similarities with the deficiencies of Dr Nelson’s report in R v Holdom.

[242] I do not apprehend the offender to suggest that there is any causal link between his diagnoses and his offending. Accordingly, I accept the Crown’s submission and approach the untested evidence in Dr Furst’s report with significant caution.”

106. It is to be noted that there is no complaint made regarding her Honour’s findings in relation to the applicant’s diagnosis of PTSD. Further, it is to be noted that the paragraph of her Honour’s reasons of which the applicant complains ([242]) appears after her Honour’s finding at [229] (extracted above at [84]) that “even taking into account Dr Furst’s opinion” her Honour could not find that the applicant was unlikely to re-offend.

107. Later, under a heading “treatment plan upon release”, her Honour set out in some detail Dr Furst’s recommendation in this regard at [250] and [253] and directed that his report be provided to the appropriate authority.

Error in sentencing judge’s consideration of Dr Furst’s reports?

108. Having considered her Honour’s reasons overall, I am not satisfied that she put Dr Furst’s opinion to one side when assessing the likelihood of re-offending. Rather, she was unable to find that he was unlikely to re-offend “even having regard to that report”. That is what she noted at [229]. In any event, Dr Furst’s actuarial assessment was that the applicant had an “average to below average level” risk of re-offending compared to other sexual offenders (prior to the consideration of protective factors). This finding was made in the context that Dr Furst had earlier acknowledged in his report that the fact that the applicant maintains his version that the sexual intercourse was consensual makes it difficult to draw any categorical conclusions in mitigation, a limitation acknowledged by her Honour at [78] of the reasons.

109. Dr Furst’s opinion as to the applicant’s risk of re-offending did not require her Honour to find that the applicant was unlikely to re-offend. That was a factual finding for her Honour to make on all of the material before her. That material included the circumstances of the offending, the applicant’s lies to police, his refusal to acknowledge his wrongdoing, the fact that he committed these offences whilst on two bonds and the fact that he committed the offences having consumed ice that day and two days prior (if indeed that was the case).

110. Significantly, Dr Furst’s opinion that the applicant had an average/below average risk of re-offending is not inconsistent with her Honour’s conclusion that she could not find that the offender is unlikely to re-offend. Her Honour was not able to be satisfied that the offender was unlikely to re-offend. That finding is consistent with the actuarial finding that he had an average/below average risk of offending. To put this another way, her Honour did not find that the applicant had a high risk of re-offending; simply that she could not positively make a finding that on the balance of probabilities he was unlikely to re-offend. That finding was open to her on the material before her.

111. Turning to the applicant’s prospects of rehabilitation, it is to be accepted that the sentencing judge did not expressly state a separate finding on the question of rehabilitation. Despite this, I agree with Adamson J that the reasons disclose that her Honour proceeded on the basis that there were some prospects of rehabilitation. The sentencing judge found that there was “a strong need” for the applicant’s rehabilitation. She noted his PTSD symptoms and previous drug use, noted the treatment plan proposed by Dr Furst and referred his report to the appropriate authority. Furthermore, her Honour found special circumstances, in part, because the applicant would “benefit from a longer term of supervision on probation in order to gain access to psychological or psychiatric treatment”.

112. Dr Furst did not deal with the applicant’s risk of re-offending and prospects of rehabilitation separately in his report. Rather, the only reference made in his report to “rehabilitation” was in the actuarial assessment of the applicant’s risk of re-offending (extracted above at [94]). In that regard, two of the four factors he relied upon in reaching a favourable conclusion as to the applicant’s prospects of rehabilitation were the fact that the applicant had not reported any sexual deviance (which relied on self-reporting) and Dr Furst’s view that he engaged in psychological help when needed (a factor contrary to other evidence as noted above at [99](8)).

113. As I recently observed in Pritchard v R [2022] NSWCCA 130 at [102], the questions of remorse, rehabilitation, and the risk of re-offending are interconnected. That decision concerned the failure of the sentencing judge to make any finding of remorse in the face of uncontradicted evidence to support such a finding. That is not this case. The applicant was not remorseful. It is well accepted that when an offender is remorseful it is more likely that there will be favourable findings in relation to rehabilitation and the risk of re-offending. As this Court (Spigelman CJ, Whealy and Howie JJ) observed in R v M.A.K.; R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [41] in the context of considering the same question of whether an offender was likely to re-offend and had good prospects of rehabilitation:

“… it is clear that remorse will be a major factor in determining whether those matters of mitigation exist: without true remorse it is difficult to see how either finding could be made.”

114. Although an absence of remorse does not preclude favourable findings in relation to rehabilitation and the risk of re-offending, it can require a sentencing judge to carefully consider whether such findings can be made. That is because a significant feature when assessing the risk of re-offending and prospects of rehabilitation is the degree of insight the offender has into his criminal behaviour.

115. It seems to me that, given their interconnectedness, in some cases questions of an applicant’s remorse, prospects of rehabilitation and likelihood of re-offending can be dealt with compendiously. In other cases it may be necessary to consider them all separately. Having regard to her Honour’s reasons overall, I am not persuaded that her Honour failed to have regard to the question of rehabilitation nor erred in her finding regarding the applicant’s risk of re-offending.

116. For these reasons, I am not satisfied that ground 5 has been made out.

Ground 6: alleged manifest excess of sentence

117. The principles to be applied when considering an allegation of manifest excess are well established and have been frequently stated in this court. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) summarised the relevant principles as follows at [443]:

“[443] When it is contended that a sentence is manifestly excessive it is necessary 1to have regard to the following principles derived from House v The King 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 (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.”

118. As has been observed by this court on numerous occasions, the question when considering a ground of appeal alleging manifest excess is not whether this court may have imposed a different sentence to that imposed at first instance. In Byrne v R; Cahill v R [2021] NSWCCA 185 at [1], Bell P (as his Honour then was) expressed it in this way:

“… A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown that warrants appellate interference with the sentencing judge’s discretion, as the famous decision in House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain.”

119. The task of determining whether a sentence is unreasonable or plainly unjust is an evaluative one. As Wilson J (with whom Beech-Jones CJ at CL and Garling J agreed) recently observed in SB v R [2022] NSWCCA 164 at [55]:

“The process of considering the applicant’s proposed ground must be, to a degree, an instinctive one, as is the procedure for determining sentence at first instance. Just as there is no single or mathematically correct sentence that should be imposed by a sentencing court, there is no mathematical equation by which an intermediate appellate court can conclude that a sentence is manifestly excessive or inadequate. The Court may be informed by considering sentencing statistics and other decided cases, or by conjecturing as to the level of notional concurrence or accumulation that may underlie an aggregate sentence, but questions of the excessive or inadequate nature of a sentence are matters for evaluative judgment. Considering all of the facts and circumstances that apply in a particular case, and having regard to the applicable principles of law, is the sentence imposed so far outside the acceptable range of sentence that it is erroneous?”

120. I have had regard to the applicant’s subjective matters as summarised by Brereton JA. They include the fact that his criminal history was not significant, he had been the victim of a violent kidnapping resulting in PTSD, was described as a loving father and was usually employed. I have also had regard to the number of offences, the applicable maximum penalties, the standard non-parole periods and the findings of objective seriousness (in relation to which no complaint is made in this court).

121. The offending conduct was objectively very serious. The aggravated sexual assaults of the cognitively impaired victim in a remote location without a condom included penetration with his penis of her mouth, vagina and anus, and digital penetration of her vagina. After the assaults he attempted to destroy any physical evidence by dragging the victim into the water. He later left her in a dark secluded location and told her not to tell police or her father what had happened. He lied to police when interviewed regarding his movements on the evening in question. It was only after his DNA profile was found in blood in an anal swab (despite his efforts to destroy such evidence) that he was forced to admit sexual contact but then claimed it was consensual. As for her injuries, her Honour described them in this way at [41]-[42]:

“[41] The victim was conveyed to a hospital by ambulance. A medical examination and sexual assault identification kit (‘SAIK’) were conducted. A doctor of the hospital observed acute fresh blood and intermittent bleeding to the vagina. Further, there were fresh tears flushed with blood (including to her hymen); a tear; four abrasions and a burst blood vessel to the skin. The doctor observed an acute tear to the victim’s anus. The doctor formed the opinion that the injuries were sustained from blunt force trauma likely caused by non-consensual intercourse.

[42] Forensic tests were conducted. Semen was detected on a rectal, perineal and anal smear. An anal swab produced a positive result for blood. A vaginal swab was taken.”

122. Her Honour set out the victim impact statement at [100] and then observed the following at [101] and [103]:

“[101] During the trial, the victim’s step mother [MR] and her father gave evidence that when they saw her after the offences she was distressed and frightened. [MR] also gave evidence that after the incident, whenever the victim saw a man with tattoos or smelt cigarette smoke, she would become frightened and would immediately come to [MR]. She further noted that the victim ‘became very quiet, withdrawn. She was often having nightmares. She was very teary. She would often to stare into space’. The victim’s father gave evidence that he had noticed a change in her demeanour after 31 January 2017. When walking around the shops, if she saw a person with tattoos, she would grab his arm and start shaking and become scared (the offender has tattoos). If she smelt cigarettes she would come straight to him and hold onto him frightened.

[103] Overall, ML’s Victim Impact Statement provides a powerful reminder to the Court of the devastating effects that the offending in question has had upon her. Regrettably, the offender’s behaviour will have long term consequences. That such fear has been instilled is telling of the harm that the offender has done. The statement has a consistent theme of being ‘terrified’. There are unavoidable triggers that now affect her mental state. …”

123. It was an aggravating feature that the offences were committed while the applicant was subject to two good behaviour bonds. Although it is to be accepted that those offences were not sexual offences, it is still relevant to his general risk of re-offending.

124. The applicant relied upon four other decisions in support of his contention that the sentence imposed was manifestly inadequate. They have been considered by Brereton JA above. As his Honour has identified, they all had different objective and subjective features. In most matters, the aggravating feature was the use of violence whereas in the present case it was the fact of the victim’s cognitive impairment. Although it is to be accepted that the applicant did not inflict significant violence on the victim in the present matter, he did not need to given that, as the evidence of Professor Susan Hayes makes clear, the victim had a mental age of a young child and did not properly understand what was happening.

125. The aggregate sentence imposed upon the applicant was certainly a stern one but in part that is the consequence of the applicant’s attitude to the offending. No accused person is ever to be penalised for exercising their right to defend themselves at trial. But the applicant’s adherence to a version that it was a consensual encounter (after lying to police that he had been with the victim at all) in the face of a strong Crown case has meant that his sentence could not be ameliorated in ways it otherwise might have. His denials mean that he lost: a 25% reduction on his sentence, a finding of remorse and more favourable findings as to the risk of re-offending and rehabilitation. As noted above, the cases relied upon by the applicant as being comparable all concerned pleas of guilty.

126. Overall, I am not satisfied that the aggregate sentence imposed was unreasonable or plainly unjust.

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Endnotes

Amendments

15 September 2022 - paragraph [122] - anonymised name of victim's step mother

Decision last updated: 15 September 2022