Blackett v R

Case •

[2021] NSWCCA 210

•

03 September 2021

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Blackett v R [2021] NSWCCA 210
Hearing dates: 4 August 2021
Date of orders: 3 September 2021
Decision date: 03 September 2021
Before: Basten JA at [1];
Adamson J at [64];
Campbell J at [65]
Decision:

(1)   Grant the applicant leave to appeal from the aggregate sentence imposed on him in the District Court on 2 October 2020.

(2)   Allow the appeal and set aside the sentence.

(3)   Resentence the applicant to a non-parole period of 3 years 3 months to date from 23 June 2020, with a balance of term of 1 year 9 months, giving an aggregate sentence of 5 years imprisonment.

(4)   The applicant will be eligible for release on parole on 22 September 2023.

Catchwords:

SENTENCING – appeal against sentence – sexual intercourse with a child aged 14-16 years – aggravated indecent assault – possess child abuse material – assessment of objective seriousness of offending – low range aggravated indecent assault a first offence – possession of three brief video clips – possession of cartoon images

SENTENCING – appeal against sentence – severity – manifest excess – relevant factors on sentence – objective seriousness – mitigating factors – autism spectrum disorder – developmental age of applicant

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M, 66C, 66EB, 91H

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 54B

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518

Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243

PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61

Texts Cited:

Diagnostic and Statistical Manual of Mental Disorders (5th ed)

Category:Principal judgment
Parties: Brendan James Blackett (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms J Paingakulam (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Swifte Law (Applicant)
Director of Public Prosecutions (Respondent)
File Number(s): 2018/335723; 2019/80370
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
2 October 2020
Before:
N Williams DCJ
File Number(s):
2018/335723; 2019/80370

Judgment

  1. BASTEN JA: On 2 October 2020 the applicant, Brendan James Blackett, was sentenced by Judge N Williams in the District Court following his pleas of guilty to five sexual offences involving a single victim, and one offence of possessing child abuse material. The judge imposed a sentence of 6 years imprisonment, with a non-parole period of 3 years and 10 months. The sentence commenced on 23 June 2020, the applicant having been taken into custody at the conclusion of the sentencing hearing.

  2. On 6 April 2021 an application for leave to appeal against sentence was filed, which identified two grounds of appeal. The first was that the sentencing judge erred in assessing the objective seriousness of two particular counts and two further matters taken into account on a Form 1. The second ground alleged that the sentence was manifestly excessive.

Background

  1. Although the applicant had known the victim for some years, prior to the commencement of the offending, the first sexual activity took place shortly after she had turned 14 years of age. They lived in a city in western New South Wales. In about July 2017 they arranged to meet in parkland. They hugged and the applicant squeezed the complainant’s buttocks on the outside of her clothing; no further activity took place on that occasion. That conduct constituted an aggravated indecent assault and was count 1 on the indictment.

  2. Some two weeks later, the applicant and the victim met again in the parkland. The applicant fondled her breasts and genitals under her clothing, following which her shorts and underwear were removed. The applicant then asked the victim to suck his penis and he ejaculated in her mouth. That conduct constituted sexual intercourse with a child aged 14-16 years, and was count 2 on the indictment. The preceding activity formed a charge of aggravated indecent assault taken into account on a Form 1 which accompanied count 2.

  3. On a third occasion, which appears to have been some five or six weeks later in August 2017, sexual activity took place in the applicant’s car. The applicant had penile-vaginal intercourse with the victim. That incident constituted a further act of sexual intercourse with a child, and was count 3 on the indictment.

  4. A further act of sexual intercourse (fellatio) occurred in the applicant’s bedroom, either shortly before or shortly after count 3, and constituted count 4 on the indictment. It was preceded by the offender showing the victim two short videos (total length 2 minutes) which he had found on the internet, each involving an older man with a young girl. One girl was performing fellatio and the other was being penetrated digitally. Showing the videos to the victim was charged as an act of grooming under s 66EB(3) of the Crimes Act and was identified as sequence 25 taken into account on count 4. Further conduct which took place on the same occasion, involving fellatio and ejaculation into the victim’s mouth, was sequence 34 contained on the same Form 1 with respect to count 4.

  5. On 1 September 2017 the victim was spoken to by an investigator with a child abuse unit. (This may have taken place as a result of disclosures by the victim to a teacher.) The victim disclosed information concerning the sexual activities between her and the applicant, but declined to provide a formal statement. However, on the basis of that information, an apprehended violence order (AVO) was obtained and served upon the applicant on 2 September 2017. The applicant was present in court when the order was made final on 13 September 2017. So far as the agreed facts recorded the contents of the order, it was in a standard form requiring that the applicant not assault or threaten the victim, nor stalk, harass or intimidate her, nor damage her property. The order also required that he not “approach” the victim, or “contact her in any way”.

  6. The applicant disregarded the terms of the order and continued to maintain contact which was regular, generally on multiple occasions daily, on various forms of social media. The contact continued over a period of 12 months and formed a further offence of contravening an AVO. The exchanges included “intimate photographs of each other”.

  7. In December 2017 the applicant contacted the victim to tell her that he was leaving a present for her at a shopping mall. They saw each other when she collected the present, but at a distance. The victim opened the present on Christmas day in private. The box contained a teddy bear with a vibrator. By social media, the applicant told her he wanted her to video-record herself using the vibrator and send him the video. She did that. That conduct constituted a charge of grooming (sequence 27) included on the Form 1 with respect to count 5.

  8. The offending with respect to count 5 occurred at night in mid-2018 in the back seat of the applicant’s car. The applicant exposed the victim’s breasts and rubbed and sucked them, conduct constituting an aggravated indecent assault (sequence 3) also on a Form 1 with respect to count 5. The applicant then removed the victim’s shorts and underwear and engaged in cunnilingus, being a further offence of sexual intercourse with a child aged 14-16 years (sequence 28 on the Form 1). He then inserted a finger inside the victim’s anus while licking her vagina, a further offence of sexual intercourse with a child (sequence 29 on the Form 1). Count 5 involved penile-anal intercourse on the same occasion.

  9. On 24 October 2018 the victim participated in a formal record of interview, disclosing the offences that occurred prior to the issue of the AVO. A week later, on 31 October 2018, the applicant was arrested and his premises searched. In the course of the search police located three videos on the applicant’s mobile phone. The videos, which were each less than two minutes in length, involved children between five and 10 years of age, two involving penile and anal intercourse and fellatio with a male. The third involved sexual activity between a young girl and a pubescent girl. This material constituted the offence of possess child abuse material under s 91H(2) of the Crimes Act (count 6). Police also located more than 2,200 images on the applicant’s computer, being computer-generated Japanese anime and manga pornographic images depicting young females in situations including bondage, torture, sexual assault, group sex and sex with fictional characters (monsters). That material constituted sequence 2, on a Form 1 accompanying count 6.

Evidence on sentencing hearing

  1. In addition to the statement of agreed facts, the material presented to the Court on behalf of the prosecution included a victim impact statement read by the victim. It provided a powerful account of the destructive effect of the relationship on the victim, including in relation to her schooling, social and family life and mental health. It was the subject of cross-examination of the applicant.

  2. The case for the applicant included oral evidence of Mr Manning, a psychologist whom the applicant had been seeing since 2014. Mr Manning had post-graduate qualifications in counselling and child and adolescent welfare. The applicant also gave evidence and was cross-examined at some length.

  3. The medical history presented at the sentencing hearing indicated a difficult childhood with behavioural problems from a young age. At the age of three years a counsellor raised the possibility that he suffered from a form of autism. The records of visits to medical practitioners and psychologists demonstrated the significant efforts made by his parents to obtain medical assistance for him from a very young age. At seven years of age, Dr Patrick Rahilly, a consultant paediatrician, noted that he slept poorly and “has always been an extremely difficult child as far as behaviour goes”. He “continues to argue strenuously all the time and have little insight [into] the impact he is having on other people. As he grows older, the question arises in my mind as to whether part of his problem could arise from the spectrum of ‘Autistic spectrum’ or Pervasive Developmental Disorder.” A year later Dr Rahilly noted:

“He has many features of ADHD …. However, he has other features, particularly of poor social interrelationships and insight into other people’s emotional welfare. A psychologist raised the possibility of an Asperger’s variant ….”

  1. In January 2003 the applicant was taken to see Dr Tony Attwood, a clinical psychologist based in Queensland. Dr Attwood stated in his report:

“I was able to conduct a diagnostic assessment for Asperger’s Syndrome that examined particular aspects of social and emotional reasoning. In particular I was able to examine his concept of friendship, characterisation, theory of mind skills and empathy and at the end of this process it was quite clear that although he was eight years old, his level of social reasoning was not only immature, but really quite different in terms of the pattern of social reasoning abilities. I was also able to review aspects of his profile of abilities with his parents in the areas of language, cognition, play, motor skills and sensory sensitivity. At the end of this process it was quite clear that indeed Brendan does have a diagnosis of Asperger’s Syndrome.”

  1. A year later, in January 2004, the applicant was reviewed by Dr David Dossetor, a senior clinical psychologist at Westmead Children’s Hospital. Dr Dossetor noted the continuation of his behavioural problems and that his parents “are concerned about his lack of insight into his problems and the influence he has on other people and his lack of awareness of both other people’s feelings and his own.”

  2. Before he gave evidence, Mr Manning provided a letter to the applicant’s Legal Aid solicitor, Mr Dickens, in which he described the applicant’s psychological circumstances in the following terms:

“Mr Blackett was predominantly treated for Autism Spectrum Disorder (ASD) Depression and Anxiety. He had odd sleeping patterns that were inconsistent and unpredictable for him and largely prevented him being able to gain meaningful work – he was on a Disability Pension due to his diagnosis. He found making and sustaining friendships difficult and had a lonely time in his adolescence. He has had long periods of Depression and found it difficult to interact in society in meaningful ways. He has always had a passion for music and has recently formed friendships of more age appropriate peers. …

…

Mr Blackett does not work but has recently attended and completed TAFE courses which he enjoyed. He finds it difficult to attend to the tasks of Daily Living and has relied on living with his parents to assist him in this regard. They assist in reminding him of everyday living tasks that need to be completed.”

  1. The sentencing judge dealt in some detail with the evidence given by Mr Manning, particularly in his cross-examination. The following passages are important: [1]

“He agreed that at the time of the offending the offender was aware of the age of the complainant. He also said that the offender was aware of the age of consent in New South Wales, being 16 years of age at the time of the offending.

Mr Manning gave evidence that the offender had been diagnosed and treated for autism spectrum disorder, which impairs the social and emotional development of sufferers. He noted that these difficulties often preclude sufferers from their age appropriate peers, and they find it more difficult to fit in.

Mr Manning further noted that people with autism spectrum disorder often find it easier to relate to others who are younger, due to their emotional development at the time.”

1. Sentencing judgment, p 13.

  1. In describing the evidence given by the applicant at the sentencing hearing, the judge stated: [2]

    2. Sentencing judgment, pp 20-22.

“The offender conceded that prior to the AVO being served the offender knew the age of the victim and that the age of consent was 16 years and that the relationship was wrong.

When asked to explain why he continued the relationship with the victim, despite this knowledge, the offender stated that he believed it was a result of his not having many people around him who[m] he could rely on and who would put in such an effort as the victim did. The offender stated that he believed those reasons led to his developing feelings for the victim. The offender stated that he did not know how to deal with the new experience of such [a] relationship. He stated that those reasons did not excuse his offending behaviour.

The offender gave evidence that prior to the [imposition] of the AVO he saw the victim as a very close friend and somebody that was ready and able to support him. He said that the victim took the time to listen to him and give advice and made an effort to understand him which he said nobody else did for him at that time. …

…

The offender stated that he did not believe he would be alive at this time if he had not been in his relationship with the victim. The offender elaborated on that, stating that, he would have ended his life had his relationship with the victim ended at that time.

…

The offender stated that he regretted his offending behaviour and he needed to make sure it never happened again. The offender conceded that he did have an interest in searching for images of young children in sexual situations online at some point but stated that he did not believe he retained that interest anymore.

…

The offender agreed that he was in court on the last occasion, when the victim had read out her victim impact statement, and agreed that he was aware of the effect of the offending on her that she detailed in that statement, including her time spent in the Bloomfield Psychological Hospital …. The offender stated that he was beginning to understand the emotional and psychological effect of the offending on the victim, stating that it was an ongoing process.”

  1. It is not necessary to repeat the judge’s summary of the submissions made by the parties, except with respect to the relationship between the applicant’s mental health and the offending. As to that the judge stated: [3]

“In reply to the Crown’s oral submissions it was submitted by the defence that it was not their submission that the offender’s mental health condition was causative in the sense of [there] being impulsivity or an inability for the offender to control himself but rather in his inability to appreciate the significance of the wrongfulness of the offending. It was submitted that the offender’s emphasis on the importance of his relationship with the complainant, his entry into the said relationship and his inability to disengage from the relationship particularly after the AVO was in force, was a function of his ASD and that that accordingly reduced his moral culpability.”

3. Sentencing judgment, p 34.

  1. In dealing with general deterrence, the judge stated: [4]

“Having regard to this offender general deterrence can be seen to be particularly relevant given what the Court finds as the bold and predatory nature of the sexual offending upon a child. A clear message must be sent to those like‑minded to offend in this way that such offending against children underage girls, will not be tolerated. I am prepared to otherwise reduce the clear need for general deterrence in a modest way to reflect to a limited degree that the offender’s well-established mental health issues may cause him to be a less appropriate vehicle to reflect general deterrence.

I am also of the view that there is a need for specific deterrence albeit somewhat reduced because of the accused’s mental health issue but there is a significant degree of actual knowledge of the wrongfulness of the offending.”

4. Sentencing judgment, pp 37-38.

  1. The judge dealt with the question of remorse in some detail, concluding by reference to prospects of rehabilitation, apparently referring to the chance of recidivism: [5]

“The Court cannot be optimistic about the offender’s prospects for rehabilitation but with positive assistance and a strong framework assisted by family support in my view the guarded prospects that the Courts have will be nonetheless enhanced.”

5. Sentencing judgment, p 40.

  1. The manner in which the judge dealt with objective seriousness is the subject of the first proposed ground of appeal and will be dealt with below. It is convenient at this stage to note the manner in which the judge dealt with the possible causal link between the ASD and the offending: [6]

“I refer to the fact that Mr Manning indicated in his report that the offender was aware at least as at August and September of 17 that his offending was both morally and criminally wrong. I am of the view that there is insufficient evidence to find support for a finding that [the] offender’s ASD contributed to the commission of the offending such as there was a causal link between the offending and his mental health issues. I do not understand that to be contended anyway by the defence.

That said however, I am prepared to find a modest adjustment of his moral culpability based on his mental health issues even though there is express evidence before the Court that the offender knew that the offending was wrong and nonetheless he persisted in it over many months.”

Ground 1 – assessment of objective seriousness

6. Sentencing judgment, p 41.

(a)   indecent assault offences

  1. Count 1 on the indictment was an offence of aggravated indecent assault, under s 61M(2) of the Crimes Act 1900 (NSW), as in force in 2017. Section 61M then provided as follows:

61M   Aggravated indecent assault

(1)   Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.

(2)   Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years.

(3)   In this section, circumstances of aggravation means circumstances in which:

(a)   the alleged offender is in the company of another person or persons, or

(b)   (Repealed)

(c)   the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(d)   the alleged victim has a serious physical disability, or

(e)   the alleged victim has a cognitive impairment.

  1. One curiosity about s 61M(2), relevant to the assessment of objective seriousness, is that it does not require that there be a circumstance of aggravation identified in subs (3). The differences between s 61M(1) and (2) were that (i) the former required a “circumstance of aggravation”, whilst (2) did not; (ii) subs (1) had no age limit, whereas the element of aggravation in subs (2) was the requirement that the victim be under the age of 16 years, and (iii) the maximum penalty in subs (1) was 7 years and in subs (2) 10 years.

  2. The applicant’s submissions drew attention to two issues; the first concerned the judge’s assessment of the significance of the age of the victim, as noted in the following passage: [7]

“With respect to count 1, I am of the view that this occurred when the victim was 14 years, which is at the lower end of the range for this offence ….”

The applicant submitted that that was an error, because there was no lower limit on the age range for the offence which was, accordingly, a range from 0-16. Accordingly, 14 years was at the top end of the age range, and thus involved a lower degree of moral culpability.

7. Sentencing judgment, p 42.

  1. In response, counsel for the Director submitted: [8]

“While age range for offences contrary to s 61M are below 16 and her Honour’s description does not appear entirely apt one should not rush to ascribe error to such a remark. Her Honour might simply have been remarking on the type of offending that was displayed rather than its categorisation at law.”

8. Written submissions, 4 August 2021, par 37.

  1. That explanation is not easy to understand; precisely the same characterisation was applied with the respect to the age of the victim in considering count 2 which involved an offence of sexual intercourse as described in s 66C(3), that is, where the victim was above the age of 14 years and under the age of 16 years. The judge stated in respect of that offence: [9]

“I note however this happened a couple of weeks after count 1 and it follows that the complainant was still of an age being 14 at the lower end of the range for this offence.”

9. Sentencing judgment, pp 42-43.

  1. The applicant’s submission in this respect should be accepted. Given the complexity of the Crimes Act provisions with respect to sexual offences, and the variations which had been made over the years, the element of confusion was entirely understandable: nevertheless, it was a mistake. Furthermore, the mistake was of some potential significance. Offences under s 61M(2) and s 66C(3) both carried a maximum penalty of 10 years imprisonment. However, for an indecent assault to approach the seriousness of sexual intercourse, it is likely that the victim would need to be a child of a very young age.

  2. The applicant submitted that the error probably infected the judge’s view of objective seriousness with respect to sequences 3 and 13 which also involved offences under s 61M(2), each being contained on a Form 1 in relation to counts 5 and 2 respectively.

  3. The second complaint made with respect to count 1 related to the judge’s assessment that, “noting the public place in which this incident took place I find that there was a certain brazenness to that offending.” [10] That language appeared to reflect findings that the offending “was calculated and predatory”, and described as “the bold and predatory nature of the sexual offending upon a child.” [11] As counsel for the applicant noted, sequence 13 and count 2 occurred in the same parkland, and involved far more explicit sexual activity. It was unlikely that such activity took place other than in a secluded area. To the extent that the judge’s description suggested a public flaunting of an inappropriate sexual relationship, it involved a finding adverse to the applicant which could not have been supported on the criminal burden of proof. That submission should be accepted.

    10. Sentencing judgment, p 42.

    11. Sentencing judgment, p 37.

  4. It is, of course, difficult to know how that factor may have influenced the putative individual sentence indicated by the judge in relation to count 1 and, further, how it affected the aggregate sentence. However, it is likely that, at least in combination, the two matters complained of were influential. After allowing a 25% discount for the plea of guilty, the judge indicated that the appropriate sentence on count 1 would have been 2 years 5 months imprisonment. That involved a starting point of 3 years 2 months imprisonment, prior to the discount. Having regard to the fact that the offence involved no more than a squeezing of the complainant’s buttocks on the outside of her clothing, whilst hugging, for a brief period of time before the victim said she had to leave and did, it is difficult to support a sentence of imprisonment at all. At that stage it was the first and only offence of a young man of 23 years of age with no criminal record. In my view, a custodial sentence was not warranted.

(b)   possess child abuse material charge

  1. The second matter relied upon as a specific error related to the assessment of objective seriousness with respect to count 6. Count 6 was the charge of possessing child abuse material, contrary to s 91H(2) of the Crimes Act.

  2. The trial judge dealt with the child abuse material by addressing the list of matters relevant to an assessment of objective seriousness in such cases, as set out by R A Hulme J in Minehan v The Queen. [12] Indeed she added a further item 10 to the list, giving a total of 14 items. In the case of six items, no finding was made because the matter was not relevant or was not known. In respect of the other eight items, in at least six the assessment expressly addressed both the videos the subject of count 6 and the animated cartoon material the subject of the offence on the Form 1, in some cases giving emphasis to the latter. Having completed her consideration of the list, the sentencing judge stated: [13]

“For all of the above reasons I find that the objective seriousness of count 6 sits in the mid-range towards the higher end of the mid-range.”

12. [2010] NSWCCA 140; 201 A Crim R 243 at [94] (Macfarlan JA and Johnson J agreeing).

13. Sentencing judgment, pp 46-47.

  1. The judge then turned to some further consideration of the Form 1 offences generally and, two paragraphs later, referred back to the Form 1 matters for charge 6, stating that “they are examples of discrete and separate offending.”

  2. In written submissions, counsel for the Director addressed the complaint as relating to the consideration identified in the second paragraph at p 47. He noted that the reasoning in that paragraph did not affect the finding of objective seriousness which had been determined three paragraphs earlier. That was correct; however, it did not address the applicant’s complaint that the earlier finding of objective seriousness, specific to count 6, was expressly based in part on material which was only found in the Form 1 offending.

  3. Furthermore, the applicant submitted, the assessment made of the videos alone could not have supported a finding of objective seriousness at the level accepted by the sentencing judge. As to whether actual children were used in the creation of the material, the judge stated with respect to count 6 that it was “unclear” as the agreed facts just referred “to some videos which are in category 1 of the base line.” [14] With respect to the nature and content of the material, including the age of the children and the gravity of the activity portrayed, the judge referred back to “the facts which are relatively bald in the narrative.” It is not entirely clear what was meant by that reference back, but no adverse finding as to the seriousness of the material was identified. With respect to any cruelty or physical harm occasioned to children, the judge only referred to the material on Form 1 which did not involve real children. With respect to the number of images, the judge made no specific finding with respect to the videos, referring only to the Form 1 material which involved animated cartoons, not real children. At least implicitly, that last finding may have involved an acceptance of the fact that there were only three videos, lasting in total for no more than four minutes.

    14. Sentencing judgment, pp 44-45.

  4. Given the fact that the videos were small in number and brief in duration, the applicant submitted that the finding of objective seriousness as being towards the higher end of the mid-range, could not have been warranted without taking into account the facts associated with the Form 1 offence. That submission should be accepted.

  5. Further, as provided by s 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), the further offences are taken into account “in dealing with the offender for the principal offence”. It follows that the Court is sentencing only for the principal offence: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002). [15] There was no contention in the present case that it was other than an error to assess the objective circumstances of the principal offence by reference to the offending identified on the Form 1.

    15. (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [39] (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing).

  6. As explained by Bathurst CJ in Abbas, Bodiotis, Taleb and Amoun v R [16] the fact that there have been further offences “may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged”; further, “[t]hat approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account”. [17] But those conclusions do not require or depend on a finding as to the objective seriousness of the charged offending based on the Form 1 material. The applicant’s submissions as to error in this respect should be accepted.

    16. [2013] NSWCCA 115; 231 A Crim R 413 at [22].

    17. Abbas at [23].

  7. The error was material. The three brief videos involved actual children, and therefore constituted a serious form of offending. Nevertheless, the videos were very short, were only three in number, demonstrated no additional elements of cruelty or physical harm, were not obtained for financial benefit, did not involve any activity on the part of the applicant, their acquisition involved no element of planning or sophistication, and there was no doubt that the applicant acted alone. The most serious aspect of the offending was therefore the involvement of actual children. As a recipient of the material, the applicant became part of the market for such material. The Form 1 offending involved no actual children and whilst it did involve a large number of images, they were cartoon images. Nevertheless, it demonstrated a willingness to obtain pornographic material involving child abuse and therefore increased the need for personal deterrence and retribution. What would otherwise have been an appropriate sentence for count 6 was properly to be increased. Nevertheless, the starting point of the sentencing judge of 4 years 4 months is, in my view, manifestly excessive as a penalty for the conduct the subject of the charge. It is also to be borne in mind that showing the videos to the victim was a separate offence of grooming, contained on the Form 1 with respect to count 3.

  8. For the reasons set out above, the applicant has succeeded in demonstrating material errors with respect to aspects of the sentencing which resulted in an aggregate sentence. It follows that the Court should undertake the sentencing exercise afresh.

Resentencing

  1. The detail of the offending has been set out above, with the result that, at least in relation to the challenges which have been accepted, there is no need to reconsider each of the charges. However, it will be necessary to indicate sentences for each of the individual offences and formulate an aggregate sentence.

  2. Count 1 and sequences 13, 25 and 3 each involved an offence for which a standard non-parole period was fixed. The standard non-parole period under s 61M(2) was 8 years, as against a maximum penalty of 10 years. For the statutory default position by which the balance of term should not exceed one-third of the non-parole period (Sentencing Procedure Act, s 44(2)) the standard non-parole period for a mid-range offence is incoherent. However, the significance for present purposes is that in fixing the putative individual sentence which might have been imposed were it not for the aggregate sentence, a non-parole period must be indicated. [18] (That course is not required for matters on a form 1.)

    18. Sentencing Procedure Act, s 54B(4).

  3. With respect to the subjective circumstances of the applicant, it is necessary to give full weight to the finding of the sentencing judge with respect to remorse, given that she had the benefit of hearing evidence from the applicant and Mr Manning, each of whom was cross-examined, and gave careful consideration to their evidence. Her qualified finding of remorse fed into her “guarded” conclusion with respect to the prospects of rehabilitation.

  4. However, I would not adopt in full the sentencing judge’s findings as to the absence of a causal link between the offending and the applicant’s mental health issues. Contrary to the view noted above, the defence did propose a form of linkage, although it was neither mechanical nor absolute in its terms, but somewhat more nuanced.

  5. First, the reference to “mental health issues” requires attention. The judge appears to have treated those issues as including not only his autism spectrum disorder (ASD), but also clinical depression and anxiety. The focus should be on the ASD, which, as fully explained in the psychiatric material, which included the relevant extract from the Diagnostic and Statistical Manual of Mental Disorders (5th ed) (DSM-5), is a developmental disorder. It includes earlier diagnoses of Asperger’s and Pervasive Developmental Disorder not otherwise specified, to which reference had been made in earlier psychological reports. As Mr Manning’s evidence explained, his ASD involved a level of emotional development which did not correlate with chronological age. It resulted in gravitation towards younger people, and their interests. It also involved a lack of insight into and understanding of social behaviours and limitations in developing a theory of mind, which would allow a greater insight into the feelings and responses of others.

  6. So understood, an important element of moral culpability in the relationship between an adult and a young person, where there is an age differential of nine years, is significantly reduced. That analysis also provides a reason to limit the weight given to general deterrence, as is usually the case where mental illness affects insight into wrongdoing. (The last point was recognised by the sentencing judge, in the passage set out above.)

  7. There is some irony in the fact that the maximum penalty for each of the charged offences was 10 years imprisonment. The four charges of sexual intercourse, though clearly more serious than the indecent assault and more serious than the charge of possessing child abuse material, carried the same maximum penalty. The applicant was also charged with an offence which appeared on a s 166 certificate of contravening the AVO, an offence carrying a maximum penalty of 2 years imprisonment: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1).

  8. There is no doubt that the only available sentence for the aggregate offending was one of imprisonment. It must also be accepted that the circumstances, as relied upon by the sentencing judge, warranted, if not demanded, a finding of special circumstances to allow for a longer period of supervised release on parole.

  9. With respect to the sexual assault charges, there was an ascending level of seriousness in the offending. They will be addressed in chronological order in order to indicate the individual sentences which would have been imposed, absent an aggregate sentence.

  10. Count 1, for reasons explained above, if taken in isolation did not warrant a custodial sentence. It was merely a first step in what became an escalating sexual involvement with the victim.

  11. Count 2 involved an act of fellatio leading to ejaculation. The accompanying sequence 13 on the Form 1 was, in effect, a series of indecent assaults leading to the offence of sexual intercourse by fellatio. The sentencing judge characterised the level of offending as just below the mid-range for that offence. In the absence of evidence of physical compulsion, and where the true level of moral culpability turned on the age of the victim, a sentence of 35% of the maximum penalty, being the first offence of its kind, was not warranted. In my view the conduct was below the mid-range and a starting point of imprisonment for 2 years would have been appropriate.

  12. Count 3 involved penile-vaginal intercourse in a car, the applicant using a condom. The circumstances differed from count 2 only to the extent that the conduct had escalated into vaginal intercourse. For count 3, an individual sentence of 2 years 6 months would have been appropriate.

  13. Count 4 occurred at around the time of the offending in count 3. It occurred in the offender’s bedroom and was accompanied by the grooming offence under s 66EB(3) of the Crimes Act, involving the showing of two short pornographic videos to the victim. It resulted in fellatio with ejaculation. It also involved an act of sexual intercourse (sequence 34) of fellatio. It is not entirely clear from the statement of agreed facts whether there were two acts of fellatio. The playing of the pornographic images nevertheless warranted a further escalation of the conduct and an indicative sentence of 3 years imprisonment.

  14. Count 5 involved a further escalation of the sexual conduct. It occurred some six months after count 4 and involved a breach of the AVO which had been given in final form on 13 September 2017. The first aspect of the offending (sequence 3 – aggravated indecent assault) involved rubbing and sucking the victim’s breasts. That was one of three offences contained on the Form 1. This was followed by cunnilingus (sequence 28 on the Form 1) and, whilst continuing the cunnilingus, inserting a finger in the complainant’s anus (sequence 29 on a Form 1). Count 5 itself was an act of penile-anal intercourse.

  15. This conduct involved a significant escalation of the physical elements of the sexual offending, and was further aggravated by the fact that it occurred whilst the AVO was in place. Whilst by this stage the victim was 15 years of age, the fact that the relationship had commenced 12 months earlier and developed over that period meant that the fact that the victim was towards the higher end of the age range for the offence did little to mitigate its seriousness. There were, in effect, three elements of sexual intercourse. It was clearly the most serious element of the offending and warranted a starting point for the sentences of 4 years 6 months.

  16. Count 6 involved the possession of child abuse material on the applicant’s mobile phone. As explained above, although the child abuse material involved real children, the fact that there were only three videos, that they were of short duration, were possessed for the applicant’s own use, without any involvement in networks or similar aggravating circumstances, reduced the objective seriousness of the offending. Its use in grooming the victim was taken into account on count 4. The grooming offence itself carried a 10 year sentence with a standard non-parole period of 4 years. Count 6, taking into account the high number of cartoon pornographic images on the Form 1, warranted a sentence of 2 years imprisonment.

  1. Finally, the sentencing judge fixed the putative sentence of 2 months imprisonment with respect to the breach of the AVO. That sentence was lenient, but appropriately so, given the separate individual sentences for sexual activity in that period.

  2. Each sentence was to be discounted by 25% discount for the early pleas of guilty. That exercise produces the following table.

Count 1 – no custodial penalty;

Count 2 – 18 months;

Count 3 – 22.5 months;

Count 4 – 27 months;

Count 5 – 40.5 months;

Count 6 – 18 months;

Breach of AVO (on a s 166 certificate) – 2 months.

The overall effect of these indicative sentences is to reduce significantly the indications given by the trial judge; it does so by reducing the indications for the earliest offending, and for the offence of possessing child abuse material. In part that reflects the errors identified in the sentencing judgment.

  1. The present case involved an ongoing (if entirely inappropriate) relationship. The criminal offending must be viewed having regard to the totality of the circumstances. On the individual sentences indicated above, without some element of concurrency there would be an aggregate sentence of imprisonment for 10 years 8 months. There should, however, be a significant level of concurrency. In my view the appropriate aggregate sentence is a period of 5 years. (That incorporates the discounts applicable to the individual sentences, but notionally could be seen as involving a starting point prior to discount of 6 years 8 months; while that is not the method by which the Court fixes the sentence,[19] it is a way of explaining the seriousness of the course of conduct taken as a whole.)

    19. PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 (Button and N Adams JJ).

  2. Adopting the same proportion between non-parole period and head sentence as that adopted by the sentencing judge, the non-parole period will be 3 years 3 months and the balance of term, 1 year 9 months. The sentence is to date from 23 June 2020, with the result that the applicant will be eligible for release on parole on 22 September 2023.

  3. On that basis, I propose the following orders:

  1. Grant the applicant leave to appeal from the aggregate sentence imposed on him in the District Court on 2 October 2020.

  2. Allow the appeal and set aside the sentence.

  3. Resentence the applicant to a non-parole period of 3 years 3 months to date from 23 June 2020, with a balance of term of 1 year 9 months, giving an aggregate sentence of 5 years imprisonment.

  4. The applicant will be eligible for release on parole on 22 September 2023.

  1. ADAMSON J: Subject to one matter, I agree with the reasons of Basten JA and with the orders his Honour proposes. I agree that an aggregate sentence of 5 years’ imprisonment ought be imposed and that the proportion between the non-parole period and the total term on re-sentencing ought be the same as determined by the sentencing judge: namely, about 65% to allow for the need for a longer period of supervision in the community. However, I do not agree with the relevance of the passage in parentheses in [61] of his Honour’s reasons since I regard any notional relationship between the aggregate sentence that has been arrived at as a result of the application of the principle of totality to discounted indicative sentences and a “grossed up” figure as potentially misleading for the reasons given by Button and N Adams JJ in PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [71]ff.

  2. CAMPBELL J: I agree with the orders proposed by Basten JA and with his Honour’s reasons.

**********

Endnotes

Decision last updated: 03 September 2021

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