Borri v The King

[2023] NSWCCA 166

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Borri v R [2023] NSWCCA 166

Hearing dates:

5 April 2023

Date of orders:

30 June 2023

Decision date:

30 June 2023

Before:

Simpson AJA at [1];
Button J at [2];
Hamill J at [3].

Decision:

(1) Extend time in which to lodge the notice of intention to appeal.

(2) Grant leave to appeal against sentence.

(3) Allow the appeal.

(4) Quash the aggregate sentence imposed in the District Court on 5 February 2021 and in lieu thereof impose an aggregate sentence of 14 years commencing 26 June 2019 and expiring on 25 June 2033 with a non-parole period of 10 years commencing 26 June 2019 and expiring on 25 June 2029.

(5) The applicant will be eligible for release to parole at the expiration of the non-parole period.

(6) Pursuant to s 25C of the Crimes (High Risk Offenders Act) 2006 (NSW), the applicant is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him.

Catchwords:

CRIME – sentence – appeal against sentence – statutory sentencing discount – whether applied to indicative sentences – where no reference to discount in judgment as published – amendment to judgment 21 months after sentence imposed and 27 days after appeal raises ground of appeal – hyperlink to JusticeLink entry added suggestion 25% discount applied – unusual course – amendment to judgment ignored – ground of appeal upheld – applicant sentenced afresh

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23(6), 25D, 25D(2)(a), 25F, 25F(7), 25F(7)(a), 25F(7)(b), s 25F(8), 44(2A)53, 53A, 53A(2)(b), 54A(2), 54B(4), 101A

Crimes Act 1900, ss 61M, 61N, 61O, 66C

District Court Rules 1973, Pt 53 r 12

Cases Cited:

Berryman v R [2017] NSWCCA 297

Convery v R [2014] NSWCCA 93

Cullen v R [2014] NSWCCA 162

Edwards v R [2017] NSWCCA 160

Hanna v R (2020) 102 NSWLR 244; [2020] NSWCCA 125

Lee, Matthew v R [2016] NSWCCA 146

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

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

Panetta v R [2016] NSWCCA 85

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

R v Borri [2021] NSWDC 189

R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Tran v R [2020] NSWCCA 39

Valentine v R [2020] NSWCCA 116

Wei v R [2015] NSWCCA 66

Woodward v R (2014) 68 MVR 376; [2014] NSWCCA 205

Zhang v R [2018] NSWCCA 82

Category:

Principal judgment

Parties:

Mark Annsley Borri (Applicant)
The Crown (Respondent)

Representation:

Counsel:
J S Stratton SC with K Ng (Applicant)
M Millward (Respondent)

Solicitors:
Andrew Scali Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/197730;
2019/197761

Publication restriction:

Publication of names and any information or material that may lead to the identification of the complainants is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 189

Date of Decision:

05 February 2021

Before:

King SC DCJ

File Number(s):

2019/197730;
2019/197761

HEADNOTE

On 5 February 2021, the applicant was sentenced by Judge King SC in the District Court to an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years. The applicant pleaded guilty when the case was still before the Local Court to 26 sexual offences against four children. Each child was a member of the applicant’s family or the child of a woman with whom he was in a relationship. By virtue of his early plea of guilty, the applicant was entitled to a 25% statutory sentencing discount.

When delivering judgment, the sentencing Judge did not say whether a sentencing discount was applied to the indicative sentence nominated for each offence. However, 21 months after the applicant’s sentence and 27 days after a notice of appeal was filed, an amendment was made to the judgment on NSW Caselaw, which annexed “JusticeLink entries demonstrating that a 25% discount was allowed in respect of each plea”. A hyperlink to those entries was included in the online version of the judgment.

The applicant appealed against his sentence on three grounds:

1. The sentencing Judge failed to take into account the applicant’s plea of guilty.

1A. The sentencing Judge did not comply with s 25F(7) of the Crimes (Sentencing Procedure) Act1999 (NSW) because his Honour failed to explain how the sentencing discount was applied and, if it was not, why it was not applied.

2. The aggregate sentence was manifestly excessive.

The Court, granting leave to appeal, upholding the appeal on grounds 1 and 1A and resentencing the applicant, held (per Hamill J, Simpson AJA and Button J agreeing):

In respect of ground 1 and 1A

1. It is important that sentencing judges acknowledge and quantify the discount given for a plea of guilty. The extent of the discount should be articulated and explained to the offender. When delivering judgment, the sentencing Judge did not say whether he was taking the applicant’s plea of guilty into account or that he had reduced the indicative sentences by the sentencing discount prescribed in Pt 3 Div 1A of the Sentencing Procedure Act: [1], [2], [16], [35]-[45].

2. When there is uncertainty as to whether a discount is provided for an offender’s plea of guilty, the Court will generally intervene and exercise the sentencing discretion afresh. While the sentencing Judge said the applicant had pleaded guilty, this did not amount to a statement that a discount was provided. The arithmetic in relation to 15 of the 26 indicative sentences raised further doubts that the applicant received the discount to which he was entitled: [1], [2], [39]-[40], [49], [52].

3. In dealing with the appeal, the Court ignored the amendment to the judgment and the hyperlink to the JusticeLink record. The timing of the amendment was problematic and the Court could not be certain of the reliability of the record. There was significant doubt that the applicant received the benefit of entering his plea of guilty in the Local Court and the Judge had not explained the way in which the sentence was calculated. Grounds 1 and 1A were upheld: [1], [2], [32], [52].

Zhang v R [2018] NSWCCA 82; Lee, Matthew v R [2016] NSWCCA 146, applied; R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Woodward v R [2014] NSWCCA 205; Wei v R [2015] NSWCCA 66; Edwards v R [2017] NSWCCA 160, considered. Cullen v R [2014] NSWCCA 162; Tran v R [2020] NSWCCA 39, distinguished.

In re-sentencing the applicant

4. The Court quashed the aggregate sentence imposed by the District Court and imposed an aggregate sentence of 14 years, with a non-parole period of 10 years.

JUDGMENT

1. SIMPSON AJA: I agree with Hamill J.

2. BUTTON J: I agree with Hamill J.

3. HAMILL J: Mark Annsley Borri seeks leave to appeal against a sentence imposed by Judge King SC in the District Court sitting in Port Macquarie. On 20 August 2020, the applicant pleaded guilty in the Local Court to 26 sexual offences committed against four children and was committed for sentence. On 5 February 2021 he was sentenced to an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years. The sentence was ordered to commence on 26 June 2019 and will expire on 25 June 2035.The applicant will first becoming eligible for parole on 25 June 2031.

4. The applicant relied on three grounds of appeal. Grounds 1 and 1A are related and assert specific legal error concerning the approach taken by the sentencing Judge to the applicant’s plea of guilty. Ground 1 asserts that his Honour failed to take into account the applicant’s plea of guilty. Ground 1A contends that his Honour did not comply with s 25F(7) of the Crimes (Sentencing Procedure) Act1999 (NSW) (“the Sentencing Procedure Act”) because he failed to explain how the sentencing discount was applied and, if it was not, why it was not applied. Leave to raise ground 1A was granted on the day of the hearing of the appeal and arose due to controversy surrounding the contents of the sentencing judgment, to which I will presently turn. Ground 2 contends that that the aggregate sentence is manifestly excessive. If the assertions of patent error in ground 1 or 1A are made out, the Court would move to exercise the sentencing discretion afresh and ground 2 need not be addressed.

5. The applicant requires an extension of time in which to bring the application. A notice of intention to seek leave to appeal was filed on 22 February 2021 and expired on 21 February 2022. The present application was filed (out of time) on 1 November 2022. An affidavit of the applicant’s solicitor explained the delay since his firm was assigned the matter from the Legal Aid Commission. Further, there is merit in grounds 1 and 1A and the appeal raises an important if peripheral issue, namely the controversy surrounding the judgment. For those reasons, the applicant should have an extension of time and leave to appeal should be granted.

The sentencing judgment

6. The appeal papers included two versions of the sentencing judgment.

7. The first is in the form of a 54-page transcript marked “AUTODOCS REVISED”. Relevant to grounds 1 and 1A, there is no reference in that version of the judgment to any sentencing discount relating to the applicant’s early plea of guilty.

8. The second version of the judgment is in “NSW Caselaw” format. It has 234 numbered paragraphs and a medium neutral citation “R v Borri [2021] NSWDC 189”. It is (at least virtually) in identical terms to the revised transcript version except that, at the end of the final paragraph, there is what appears to be a hyperlink with a notation:

“Borri Sentence – JusticeLink 5FEB21 (8807.docx)”.

9. There follows a notation that states:

“Amendments

28 November 2022 – Annexure of JusticeLink entries demonstrating that a 25% discount was allowed in respect of each plea on 5 February 2021.”

10. In the appeal papers, following the Caselaw version of the judgment, there is a 43 page “JusticeLink” printout. If the reader goes to the Caselaw website and clicks on the hyperlink at the end of the judgment, they will be taken to that 43-page document. The printout (and the hyperlink) sets out, one by one, each offence sequence with an entry as to the aggregate sentence and non-parole period, followed by every indicative sentence for each sequence. That is repeated for each and every sequence, thus explaining the length of the document. On each line where the indicative sentence is specified, there is an entry that says:

“Sentence discount of 25.0% is included.”

11. That notation appears 676 times (26 x 26) within the JusticeLink printout.

12. Affidavit evidence was read on the hearing of the appeal concerning attempts by one or other or both of the parties to obtain the audio recording of the judgment on sentence. It annexed an email chain between the solicitors for the parties and an officer from “District Court Transcript Sales, Department of Communities and Justice”. An email from the Departmental officer dated 29 November 2022 at 4:41pm to a solicitor for the Director of Public Prosecutions was in the following terms:

“Good Afternoon [name redacted],

We contacted Judge King’s Associate regarding your sound recording request from this matter.

The Judge’s Associate advised us as follows:

‘His Honour does not usually allow access to the sound recordings of his Judgments etc. In this instance his Honour already has duplicates of the sound recordings, and the DPP may directly contact us should they still require the audio if the dispute only concerns reference to 25% discount for the pleas after being informed that his Honour has listened to the full sound recording and says he has made no verbal reference to that discount, even though he intended to do so and also in fact took it into consideration in the calculation of the sentences…

The Associate’s email continued with a reference to our Justicelink system and a link was also provided by the Associate to the amended Caselaw version of the judgment [2021] NSWDC 189. We have attached a downloaded copy of that Judgment for you.”

[Emphasis in original.]

13. There was a considerable amount of discussion at the hearing about these matters. The Court was seeking to understand the nuances of the JusticeLink and Caselaw systems; when particular entries were made; how and by whom they were amended; and the precise status of the JusticeLink entry in circumstances where there was no reference to it the sentencing judgment until the amendment was made and the hyperlink was inserted into the Caselaw version of the judgment.

14. Much remains uncertain, but the following things and dates are known:

• The administrators of Caselaw NSW have advised the Court that the judgment was originally uploaded to Caselaw on 21 May 2021 (that is, a little more than three months after the judgment was delivered).

• Grounds of appeal were filed in the Supreme Court Registry on 1 November 2022. This included ground 1 asserting “the learned sentencing judge failed to take into account the Applicant’s early plea of guilty in determining the sentence which was imposed”.

• The amendment to Caselaw, and the insertion of the hyperlink to the Justicelink entry, was made on 28 November 2022 (that is, 21 months after the applicant was sentenced and 27 days after his notice of appeal was filed).

Ground 1: The learned sentencing Judge failed to take into account the applicant’s early pleas of guilty in determining the sentence which was imposed

Ground 1A: The learned sentencing judge failed to comply with s 25F(7) of the Crimes (Sentencing Procedure Act), in that he did not indicate to the applicant when passing sentence or record either:

(a) If the sentencing discount was applied, how the sentence was calculated; or

(b) If the sentencing discount was not applied, the reasons for failing to apply the discount

15. Grounds 1 and 1A can be dealt with together. I have concluded that these grounds are established and the Court must exercise the sentencing discretion afresh. I will explain my reasons for that conclusion before setting out the facts of the offences, the personal circumstances of the applicant and the material tendered “on the usual basis” for the purpose of determining whether a different, less severe, sentence is warranted.

16. When delivering the sentencing judgment on 5 February 2021, his Honour did not say that he was taking the applicant’s plea of guilty into account. His Honour did not indicate that the early plea was considered as evidence of contrition or that he had reduced the indicative sentences by the sentencing discount for the utilitarian value of the plea as prescribed in Pt 3 Div 1A of the Sentencing Procedure Act.

17. Section 25D of the Sentencing Procedure Act relevantly provides that:

25D Sentencing discounts for guilty plea for offences dealt with on indictment

(1) Mandatory nature of sentencing discount. In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2) Amounts of sentencing discounts. The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or   

(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

18. Section 25F provides:

25F Other provisions applying to sentencing discount

(1) Application. This section applies to a sentencing discount under this Division.

(2) Exception to application of discount—level of culpability. The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines, on its own motion or on the application of the prosecution, that the discount should not be applied or should be reduced because the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount.

…

(4) Exception to application of discount—disputed facts. The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender.

(5) Offender to establish grounds for discount. The burden of establishing that grounds exist for the sentencing discount lies on the offender and must be proved on the balance of probabilities.

…

(7) Discount information to be given to offender by court. The court must indicate the following to the offender when passing sentence for an offence and must record the matters indicated—

(a) if the sentencing discount is applied, how the sentence imposed was calculated,

(b) if the court determines in accordance with this section not to apply or to reduce the discount, the reasons for the determination.

(8) Sentence not invalidated by failure to comply. The failure by a court to comply with this Division does not invalidate any sentence imposed by the court.

19. Section 25F(8) needs to be understood by reference to s 101A:

101A Effect of failure to comply with Act

A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence.

Submissions

20. The applicant submitted that the sentencing Judge erred by failing to apply the statutory sentencing discount to the sentences and fell into error by failing to give reasons in breach of s 25F(7)(b).

21. It was further submitted that if, contrary to that primary submission, the Court found that the sentencing Judge did apply a sentencing discount, his Honour failed to comply with s 25F(7)(a) because he did not indicate the way the sentence imposed was calculated. It was submitted that there are only two possibilities: his Honour failed to comply with one or other of s 25F(7)(a) or s 25F(7)(b).

22. The applicant submitted that the purpose of provisions such as s 25F(8) is to protect the validity of the sentence until the asserted error is considered by the Court of Criminal Appeal, but does not save a failure of compliance with the provisions from constituting an error of law. The applicant relied on Panetta v Regina [2016] NSWCCA 85, which considered the interaction between ss 23(6) and 101A of the Sentencing Procedure Act. It was submitted that there is no relevant distinction between ss 25F and 23(6), which says that “the failure of a court to comply with the requirements of subsection (4) [specifying and giving reasons for giving a discount for assisting authorities] does not invalidate the sentence”. N Adams J found (at [36]) that:

“… the failure to comply with subs 23(4) is an error of law affecting the sentence which requires this Court to consider the issue of resentencing under s 6(3) of the Criminal Appeal Act 1912 (NSW).”

23. The respondent accepted that the sentencing Judge did not make specific reference to the quantum of the discount for the applicant’s early pleas of guilty. However, it relied on four matters to support a conclusion that his Honour did afford the applicant a 25 per cent discount.

23. First, there was no dispute between the parties that the applicant was entitled to a discount of 25 per cent by virtue of the operation of s 25D(2)(a) of the Sentencing Procedure Act. This was referred to in the sentencing proceedings and in written submissions. For example, the following exchange took place between the sentencing Judge and counsel appearing for the applicant:

“LLOYD: … There appears to be agreement with the Crown in relation to the timing of the pleas, that a 25% discount is justified.

HIS HONOUR: Yes, that’s accepted.”

25. Secondly, his Honour was “explicitly cognisant” of the fact that pleas of guilty were entered having said at [204] of the sentencing judgment:

“I have previously noted that the plea of guilty was in effect from 20 August 2020 when he pleaded guilty at the Port Macquarie Local Court.”

26. It should be noted that his Honour went on to say:

“That was 14 months after he had been arrested in respect of these matters on 26 June 2019.”

27. The respondent relied on the observation of R A Hulme J in Tran v R [2020] NSWCCA 39 (“Tran”) at [26] that it is “elementary” that a plea of guilty in the Local Court will normally attract a reduction of sentence of 25 per cent.

28. Thirdly, the sentencing Judge referred at [88] to the sentence imposed on a co-offender (TS) in relation to count 23 and noted that Judge Ellis “allowed a 25% discount for the early plea”. At [230] Judge King indicated the same indicative sentence as Judge Ellis had for this count. This was said to be a “compelling indication” that his Honour afforded the applicant a 25 per cent discount for his early pleas of guilty.

29. Fourthly, the foregoing submissions found support in the “JusticeLink entry for 5 February 2021 – the date the applicant was sentenced. The entry, which is included as an annexure to the published judgment, records that a discount of 25 per cent was included in the calculation of the indicative term specified in respect of each offence.” The respondent submitted that “the JusticeLink record constitutes the formal record of the sentence” and that “this Court can and should have access to the formal record for the purpose of determining this ground”. Reference was made to the District Court Rules 1973 (NSW) Pt 53 r 12 and Cullen v R [2014] NSWCCA 162 (“Cullen”) at [36].

Limitations on the respondent’s arguments

30. While the four matters raised by the respondent have some force, there are significant limitations to each of them, particularly in the context of the clear terms of the legislation and the arithmetic relating to many of the individual indicative sentences.

31. As to the first argument, the exchange between the sentencing Judge and counsel and the fact that the parties were as one as to the proper approach to the sentencing discount, there was a substantial delay between the hearing and the judgment. The hearing took place on 24 November 2021 while the judgment was delivered more than two months later. It is not safe to conclude that the agreed position of the parties was reflected in the sentence imposed after such a lengthy period.

32. As to the second matter, a statement that the applicant pleaded guilty does not equate to the provision of a sentencing discount. The provisions allow, albeit in relatively rare circumstances, for no discount to be provided. Further, the observation that the plea was entered “14 months after [the applicant] had been arrested” is opaque and could be seen to suggest the plea had less utilitarian value. That comment undermines the reliance placed by the respondent on the “elementary” nature of the sentencing discount. Even experienced judges, given the pressure under which they work in sentencing courts, can overlook a basic sentencing principle.

33. As to the third matter, the fact that Judge Ellis applied a 25 per cent discount to a co-offender and that Judge King settled on the same indicative sentence, does little to advance the argument. While the sentencing Judge said there was little to distinguish the cases, they were different offenders with different roles and subjective circumstances. A strict compliance with the parity principle might be explicable for many reasons.

34. The fourth matter – the JusticeLink record – raises one of the problems at the centre of the appeal. In Cullen complaint was made that the sentencing Judge did not state the commencement date of the sentences imposed, in circumstances where it was not immediately clear whether his Honour was imposing a separate sentence for each offence (in which case he would have been required to stipulate the commencement date, non-parole period and the first day on which the offender would be eligible for parole for each offence) or an aggregate sentence for all the offences (in which case he only needed to identify the commencement date for the aggregate sentence and the non-parole period): Sentencing Procedure Act, ss 53, 53A, 54B(4). Adamson J (as her Honour then was) found that the sentencing Judge imposed an aggregate sentence and the record of the sentence on JusticeLink was consistent with his Honour’s obligations under ss 53A and 54B(4) of the Sentencing Procedure Act. The case is distinguishable. Moreover, the way in which the JusticeLink record was incorporated into the judgment by an amendment, and the timing of that amendment by reference to the date of sentence and the date the appeal was lodged, is problematic.

35. None of the respondent’s arguments is capable of addressing the applicant’s alternative complaint under the amended ground 1A. The purpose of the amendments introduced in April 2018 was to provide a prescriptive scale of sentencing discounts and to ensure the extent of the discount was clearly articulated and explained to the offender. This is calculated to encourage “early” and “appropriate” pleas of guilty and assuage any concerns that offenders were not given the benefit of an early plea, a matter discussed as long ago as the guideline judgment on pleas of guilty in the year 2000: R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (“Thomson & Houlton”) at [33], [38]. The timing of the amendment to the judgment did little to diminish any “scepticism” of the kind referred to by the former Chief Justice in the guideline judgment at [38].

Some relevant cases

36. At least since the decision in Thomson & Houlton, this Court has emphasised the importance of sentencing judges acknowledging and quantifying the discount given for an early plea of guilty: see Thomson & Houlton itself at [52]. The policy benefits of acknowledging the discount in a clear and transparent way has been emphasised: Woodward v R [2014] NSWCCA 205 (“Woodward”) at [11].

37. In Zhang v R [2018] NSWCCA 82 (“Zhang”) Hoeben CJ at CL set out at [51] the relevant principles when there was a failure to quantify the discount for an early plea of guilty:

“Although quantification of the discount for an early plea of guilty is preferable, a failure to do so does not necessarily by itself establish error: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [82]-[83]; R v DF [2005] NSWCCA 259 at [15]; R v Henare [2005] NSWCCA 366 at [26]. Whether a failure to explicitly state that a guilty plea has been taken into account indicates that the plea was not given weight depends on the circumstances of the particular case and the content of the reasons: Woodward v The Queen [2014] NSWCCA 205 at [6]. Where there is a real possibility that the plea was not properly considered, failure to refer to the issue in the judgment should be treated as a material error: Lee v R [2016] NSWCCA 146 at [37].”

38. In Wei v R [2015] NSWCCA 66, Adamson J (as her Honour then was) said at [26] that “[t]his Court ought not, in my view, lightly infer that a task which is undertaken regularly and under significant time pressure has been undertaken with such obvious omission as to fail to apply a discount for a plea of guilty.” On the other hand, in Edwards v R [2017] NSWCCA 160 (“Edwards”), Garling J said at [41] “[i]t can be accepted that the sentencing Judge was experienced in the criminal law and that he can be taken to have understood the matters to which a judge is obliged to have regard when imposing a sentence” but that the “failure to attend diligently to his statutory obligation, of which he was well aware, is simply inexplicable unless he determined to give the plea no weight at all”.

39. The approach taken by Basten JA and McCallum J (as their Honours then were) in Lee, Matthew v R [2016] NSWCCA 146 may be instructive in the applicant’s case. Their Honours could not reach a firm conclusion as to whether a discount was applied and said at [20]-[21]:

“Despite the commendable simplicity of the ground as formulated, it relied upon an inference that the judge did not take the early pleas into account, an inference drawn from the absence of any reference in the judgment on sentence to the pleas, or to the availability of a discount. The ground might have been better formulated in the alternative, namely that the trial judge erred, (a) in failing to take into account the early pleas of guilty, or (b) in failing to explain in the reasons for judgment how such pleas had been taken into account. Despite the fact that the ground was not so expressed, we propose to deal with it on the basis that it was so expressed. Both parties acknowledged that there was no reference to the pleas or the discount in the reasons of the sentencing judge. The Director nevertheless submitted that it should be inferred that they had been taken into account; the applicant submitted that the absence of any reference, taken with other factors, demonstrated that they had not.

It is not possible to reach a firm preference for one view or the other; however, it is that unresolvable uncertainty which demonstrates error in failing to deal with the matter in the judgment. The Director should not succeed on a basis which denies an error of law. For that reason, the appeal should be upheld. That has consequences for resentencing, which will be addressed below.”

40. It was held at [41] that the uncertainty warranted the intervention of the Court and the sentencing discretion was exercised afresh.

41. On some occasions, the Court has inferred that the discount had been applied.

42. In Tran the sentencing Judge made no mention of applying a quantified discount to the sentence imposed. Nor did the Judge say that he had considered the plea. R A Hulme J (McCallum JA and Button J agreeing) were satisfied that the sentencing Judge sentenced on the basis that Mr Tran was entitled to a 25 per cent reduction of sentence for his plea of guilty for a number of reasons referred to at [24]-[30], including: (i) the sentencing Judge opened his remarks on sentence by observing that Mr Tran pleaded guilty; (ii) it is “elementary” that a plea of guilty in the Local Court will attract a 25 per cent discount; (iii) the prosecution conceded in written submissions that Mr Tran was entitled to the “full discount”; (iv) the sentencing Judge referred to sentencing statistics that had been distilled solely to offenders who had pleaded guilty, suggesting his Honour appreciated that 25 per cent was the highest discount available; (v) his Honour was provided with a schedule of comparable cases which specified the level of discount for a guilty plea; and (vi) his Honour made remarks about the need to impose a sentence in accordance with the range indicated in the statistics and comparable cases, which only included sentences that had been discounted because of the pleas of guilty.

43. In Zhang Hoeben CJ at CL (Fullerton and Davies JJ agreeing) was satisfied that there was no “real possibility” that the sentencing Judge did not properly consider and apply an appropriate discount in respect of Mr Zhang’s plea of guilty, despite the fact that his Honour did not refer to a specific discount in his reasons. Hoeben CJ at CL was so satisfied in light of the following matters (i) numerous references in the sentencing proceedings to the early plea of guilty, including four days before the judgment was handed down; (ii) the explicit reference to the fact of the early plea in the sentencing judgment; (iii) the fact that his Honour had already handed down three sentences on Mr Zhang’s co-offenders that day, in which he expressly referred to the discount for an early plea of guilty; and (iv) the “mathematical neatness” of the sentence (adding 25 per cent to the figures suggested a starting point of a non-parole period of 9 years with a balance of term of 3 years, i.e., a total sentence of 12 years compared to the total sentence of 9 years actually imposed on Mr Zhang).

44. This “reverse engineering” argument was held by Garling J to be an inadequate basis in the circumstances of the case for inferring that the sentencing Judge was giving a discount, despite the mathematical neatness of the figures: Edwards at [40]. See also Woodward at [11].

45. Other cases where the Court has intervened on similar grounds are Convery v R [2014] NSWCCA 93 and Valentine v R [2020] NSWCCA 116.

An analysis of the indicative sentences

46. When a court is imposing an aggregate sentence, the sentencing discount is applied to the indicative sentence: see PG v R [2017] NSWCCA 179 (Button and N Adams JJ, Basten JA dissenting). See also Berryman v R [2017] NSWCCA 297 at [29] (Leeming JA, Bellew and Lonergan JJ) and Hanna v R [2020] NSWCCA 125 at [78] (per Simpson AJA).

47. Judge King set out the individual indicative sentences of imprisonment at [205]-[229]:

Count 1 Sequence 2 – 1 year and 6 months.

Count 2 Sequence 3 – 2 years and 3 months, with a non-parole period of 1 year and 8 months.

Count 3 Sequence 7 – 2 years and 3 months, with a non-parole period of 1 year and 8 months.

Count 4 Sequence 24 – 6 years.

Count 5 Sequence 9 – 2 years and 3 months, with a non-parole period of 1 year and 8 months.

Count 6 Sequence 25 – 6 years.

Count 7 Sequence 27 – 4 years.

Count 8 Sequence 17 – 1 year and 9 months, with a non-parole period of 1 year and 3 months.

Count 9 Sequence 23 – 9 months.

Count 10 Sequence 21 – 1 year.

Count 11 Sequence 22 – 8 months.

Count 12 Sequence 29 – 1 year and 6 months.

Count 13 Sequence 30 – 1 year and 6 months.

Count 14 Sequence 35 – 6 years.

Count 15 Sequence 36 – 2 years.

Count 16 Sequence 7 – 6 years and 4 months.

Count 17 Sequence 32 – 1 year and 9 months.

Count 18 Sequence 10 – 4 years.

Count 19 Sequence 11 – 4 years.

Count 20 Sequence 12 – 4 years and 4 months.

Count 21 Sequence 15 – 4 years and 6 months.

Count 22 Sequence 16 – 4 years and 4 months.

Count 23 Sequence 33 – 1 year and 1 month.

Count 24 Sequence 34 – 1 year and 9 months.

Count 25 Sequence 21 – 5 years.

Count 26 Sequence 28 – 1 year.

48. In more than half of these indicative sentences, it is not apparent what the starting point would have been if the sentencing Judge applied a 25 per cent discount to the starting point. It would not have been a round number of years or months. This applies to fifteen of the counts, that is, counts 7, 8, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25 and 26. In respect of the remining eleven counts, that is counts 1, 2, 3, 4, 5, 6, 9, 12, 13, 14 and 24, it is possible to “reverse engineer” (as it was put by Garling J in Edwards) the result so as to identify a round number or sensible starting point.

49. It is arguable, but not convincingly so, that the results came about following a degree of “rounding down”. However, that would be to engage in speculation when there is nothing in the judgment to suggest that is how the indicative sentences were settled upon and the respondent did not suggest that the sentencing results were amenable to such a process. The only time in the judgment that his Honour referred to “rounding” was at [211] when he referred to rounding down the non-parole period for count 8 by 22 days.

Conclusion on grounds 1 and 1A

50. Based on the foregoing analysis, I am satisfied that grounds 1 and 1A must be upheld.

51. There is no doubt that ground 1A is established. The sentencing judgment failed to comply with the requirement under s 25F(7) to indicate to the offender, and to record – “when passing sentence” – whether the sentencing discount was applied and how the sentence imposed was calculated. If the record somehow made it clear that the sentencing discount was applied, this error may not have impacted on the outcome although it would remain an important omission.

52. In considering ground 1, in view of the timing of the amendment to the Caselaw version of the judgment, the Court should ignore the amendment and the hyperlink reference to the JusticeLink record. The Court cannot be certain of the reliability of the entries, the entries did not form part of the judgment as it was originally published and it is very unusual to incorporate such a record into an existing published judgment.

53. I am satisfied that the applicant has also established that ground 1 must be upheld. There is, at least, a significant doubt that the applicant received the benefit of entering his plea of guilty in the Local Court.

54. Accordingly, it is not necessary to resolve ground 2. Rather I will move immediately to exercise the sentencing discretion afresh. In doing so I have endeavoured not to be influenced by the indicative sentences nominated by the sentencing Judge or the aggregate sentence imposed. The exercise, as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, is a genuine re-exercise of the discretion.

Is a different, less severe, sentence warranted in law and should have been passed?

55. The resentencing exercise cannot be undertaken by an arithmetical exercise, for example, by applying the 25 per cent discount to which the applicant was entitled to the indicative sentences nominated by his Honour. The evidence of the email from the Judge’s Associate and the amendment to the sentencing Judgment create a doubt over precisely what happened in the Court below. It is necessary to state the indicative sentences that this Court would have imposed (after the 25 per cent sentencing discount), to apply principles of totality and proportionality and consider the extent of accumulation required, and to formulate the appropriate aggregate sentence.

56. Despite the applicant establishing grounds 1 and 1A, the sentencing judgment otherwise provided a thorough analysis of the factual circumstances and relevant issues that arose on sentence. Apart from the approach to the plea of guilty and sentencing discount, no issue was taken to Judge King’s approach to sentencing the applicant. Rather than repeating his Honour’s work, or setting it out in full, I will assume the reader is familiar with his Honour’s summary of the facts of the case: R v Borri [2021] NSWDC 189 at [2]-[152]. However, it remains necessary to provide an overview of the serious criminal offending, the applicant’s personal circumstances and the relevant sentencing principles.

The offences

Charges and course of conduct

57. The applicant was sentenced on the basis of a lengthy statement of agreed facts relating to each of the 26 charges and the surrounding factual circumstances. The offending took place over a decade and involved four victims. Each victim was a member of the applicant’s family or the child of a woman with whom he was in a relationship at the time of the offending:

• Counts 1–8 concerned offences against GS, who was aged between 10 and 15 years over the period of offending (2002-2008).

• Counts 9–11 concerned JG, who was aged 14-15 years in the period of offending (2002-2004)

• Counts 12–25 related to SS, who was aged 12–15 years in the period of offending (2008-2012).

• Count 26 was the only offence relating to TS who was the only boy and was aged 12-13 years between 12 July 2006 and 13 July 2008, when the offence was committed.

58. The offences comprised 15 offences of committing acts of indecency contrary to the since repealed ss 61M, 61N or 61O of the Crimes Act 1900 (NSW) and 11 offences of aggravated sexual intercourse contrary to s 66C. The offences ranged in seriousness from the applicant masturbating in front of the children (count 11) to having the child masturbate him, rubbing the child’s clitoris while in the shower and with the child’s mother participating (counts 15-16). There were offences involving the applicant performing cunnilingus on the child and digitally penetrating her (counts 21-22) and having the child perform fellatio on him (count 25). Some of the offences involved filming the incident or offering the children money. Several of the counts related to the same incidents with the individual acts being charged as separate offences, and there was a course of ongoing conduct traversing many years. The children were under the applicant’s authority and, over time, became “habitualised” to sexual behaviour.

58. The offences involved an egregious breach of trust and were committed in the children’s homes where they were entitled to feel safe. These were aggravating features correctly identified by the sentencing Judge.

The victims and the individual offences

60. The details of the offences were set out by the sentencing Judge between [20]-[38] (GS), [48]-[56] (JG), [64]-[95] (SS) and [103]-[105] (TS) of the sentencing judgment.

Victim GS (counts 1-8)

61. GS moved to the Port Macquarie area with her mother when she was nine years old. The applicant was her aunt’s husband.

62. Count 1 occurred when GS was 10 years old. The applicant followed her into a bird cage and grabbed her from behind. He pulled her towards him and touched her inner thigh while grinding his erect penis against her buttocks.

63. Count 2 occurred when GS was 11. She was lying on her stomach watching television at her grandmother’s place. The applicant approached her, told her he would massage her upper thighs and touched her genitalia on the outside of her shorts.

64. Shortly after her 13^th birthday, GS was lying on the floor at her grandmother’s house. The applicant squeezed her crotch and buttocks and rubbed her genitalia on top of her clothing (count 3). He reached under her shorts and underwear and rubbed her clitoris (count 4). He stopped when he heard people enter the house.

65. Count 5 occurred at her grandmother’s house when GS was 13. The applicant pulled down the zipper on GS’s shirt exposing her breasts. Using both hands, he grabbed and squeezed her breasts and licked her breasts and nipples.

66. Count 6 occurred in the computer room at the applicant’s house when the applicant placed his hand inside GS’s pants and rubbed her genitalia and clitoris in a rough manner. GS was still 13 years old and she faked an orgasm so the applicant would stop.

67. When GS was 14 the applicant walked in on her while she was having a bath in his house and rubbed her genitalia and clitoris for a short time. GS said the applicant frequently watched her while she showered.

68. Around this time GS told the applicant they had to stop the sexual behaviour because she felt guilty about what they were doing to her aunt. The applicant told her he would leave her aunt to be with her when she turned 18.

69. Count 8 occurred when GS was 15 years old. The applicant approached her when she was lying on the couch at her grandmother’s house. He parted her legs, laid on top of her and grinded his erect penis against her genitalia. He kissed her neck and squeezed her breasts under her clothing. He stopped when he heard the door open.

70. In around April 2009, when GS was 16 years old, she realised what the applicant was doing to her was wrong and the sexual contact stopped around that time. The agreed facts also included other instances of sexualised touching of GS by the applicant between 2002 and 2009 to establish the context of the charged offences and to establish the habituation of sexualised conduct.

71. In September 2014, GS told her mother the applicant had touched her but that “it didn’t go all the way”. The matter was reported to the police, but her statement was not completed at that time. A statement was made in June 2019.

Victim JG (counts 9-11)

72. JG’s father was married to the applicant’s sister for five to six years. From when JG was aged 10 to 15 or 16 years old, she lived with her father and the applicant’s sister. JG frequented the applicant’s house where he lived with his wife, SB (JG’s aunt).

73. Count 9 occurred when JG was 14. The applicant offered to pay JG to watch him masturbate. She agreed, he masturbated in front of her and paid her $50 or $100. This was not an isolated incident and similar conduct occurred on four or five occasions.

74. Count 10 occurred at JG’s house when the applicant grabbed her breasts through her clothing. He pretended it was a joke.

75. Count 11 happened when JG was 14 or 15 years old and the applicant drove her to his house. He took JG to the computer room and offered to pay her to watch him masturbate. She agreed and he masturbated while saying sexual things. He paid her $50.

76. JG reported the offences to the police on 16 August 2019.

Victim SS (counts 12-25)

77. When SS was about four or five years old, her mother was dating the applicant, who was married and living with SB. SS was told that the applicant was her father. The applicant and SS’s mother encouraged the children to shower with them and told them it was normal, even when they were teenagers. The children did not question this and showered with them daily. Sexual touching of SS commenced in the shower when she was 10 years old. The offending against SS included the applicant masturbating in front of SS, touching and licking her clitoris and SS complying with requests to masturbate and perform fellatio on him. On various occasions, the applicant touched her genitalia while washing her. The conduct progressed over time to the applicant and SS’s mother engaging in sexual foreplay in the shower in front of SS and encouraging the child to film them having sexual intercourse.

78. Count 12 occurred when SS was 12 years old and after she arrived home from school. She was naked in the bedroom with the applicant. The applicant masturbated in front of her.

79. Counts 13 and 14 also occurred when SS was 12. After the applicant and SS showered together, they went into the bedroom. The applicant started to masturbate himself and rubbed SS’s clitoris with his other hand. Despite SS’s physical and verbal protests, the applicant persisted. He told her it was natural.

80. Counts 15 and 16 occurred when SS was 13. She and the applicant were in the shower and the applicant rubbed her clitoris. The applicant told SS to grab his penis. She complied and masturbated him. SS’s mother joined them in the shower and took over masturbating the applicant, while he rubbed SS’s clitoris and her mother’s genitalia.

81. Counts 17 and 18 occurred when SS was 14. The applicant drove the child to his house and instructed her to duck her head down so his wife would not see or find out. They had a shower and then sat on the lounge. The applicant masturbated himself until he ejaculated while rubbing SS’s clitoris using his other hand. He used tissues to wipe his semen from SS’s leg.

82. Counts 19 and 20 occurred when SS was 14 after a shower together. The applicant rubbed and licked SS’s clitoris.

83. Counts 21 and 22 occurred after school, when SS was still 14. There was a tripod at the end of the bed. The applicant was naked and undressed SS. He insisted on filming the incident over SS’s protests. He licked her clitoris very firmly and penetrated her vagina with his finger, which made her pull away. He continued to lick her clitoris, and his unshaven face caused her pain.

84. Count 23 occurred when SS was 14. The applicant and SS’s mother asked SS to film them having sexual intercourse. They said it would be fun. SS’s mother told her to “follow our bodies, make sure both of us are in the frame at all times, zoom in and out to get close ups”. The applicant said, “get in close on us kissing and my penis going in and out of her vagina, you'll know what to do, just have fun with it”. Police located the footage, which was of six minutes in duration.

85. Counts 24 and 25 occurred when SS was 15. The applicant was masturbating in the bedroom and told SS to hold his “balls”. He told her to “give it a little kiss”. SS resisted but eventually kissed his penis. He said, “[t]hat wasn't that bad, that alone just got you $100”. He then said “[j]ust put your mouth around it… It's good experience for when you have a boyfriend”. SS protested saying, “No, I don't want to, you have already taken firsts from me”. He insisted until she put her mouth around his penis. He thrusted his body towards her couple of times before SS pulled away. He masturbated until he ejaculated while she sat next to him. The applicant assured her that there was nothing wrong with what they did, saying “it's all just experience. This is how all families should be.”

86. The applicant bought SS a car when she got her learner’s permit in 2012, telling her “[t]his is paid for out of your working money”, referring to the sexual assaults. He gave her other gifts over the years. Her brothers referred to her as being “Daddy's little girl” due to the attention she received from the applicant.

87. In 2019, SS learned the applicant was residing with a woman with a young daughter and was concerned for the daughter’s safety. On 25 May 2019, SS told a friend who was a police officer. The officer reported the matter to other police and SS provided a statement to police.

Victim TS (count 26)

88. TS is SS’s brother. TS described growing up in an environment where the children were told that nudity and showering together was normal. When he was about eight years of age there was a family photo taken of all of them naked on a bed.

89. Count 26 occurred when TS was about 12 or 13. He did not want to go to school one day and told the applicant and his mother (“Ms TS”) that he was sick. The applicant said to him “[t]he only way you’re not going to school is to drink breast milk from your mum”. TS licked her nipple, which had a milk-like substance coming out, and then sucked her breast for a short time. The applicant said he could take the day off school.

The victim impact statements

90. GS, JG and SS each provided a victim impact statement to the Court. GS and SS read their statements to the Court.

91. GS told the Court that she had been diagnosed with post-traumatic stress disorder and had made attempts on her own life. The sexual abuse impacted on her relationships and sexuality and her current partner has to “walk on egg shells” as she experiences periods of “anxiety, flashbacks, depression, insomnia or emotional breakdown”. She has good days and bad days depending on what triggers her PTSD. GS had lost contact with some family members because she feels that they did not protect her from the applicant.

92. JG said the abuse “impacted my life majorly”. She has recovered from drug addictions, had trust issues with men and memory loss from blocking out her experiences with the applicant. She feared she could not protect her own four children from men like the applicant. She feels she was robbed of her full potential and felt “belittled and worthless and isolated and made to believe it was okay”.

93. SS described the applicant’s manipulative and controlling behaviour and said he took her innocence away. She constantly feels “dirty and not worthy”. She has intimacy issues with her current partner and had similar problems with previous partners. She described her feelings of guilt and shame and said she could “not go a single day without hearing, smelling or even seeing anything that reminds me of him and what he did to me for such a long time.”

94. The foregoing is an inadequate summary of the content of the victim impact statements but demonstrates the accuracy of Judge King’s observation at [108] that the statements were “eloquent testimony to the fact that the offending of this nature against young children has dire consequences that persist for many years and might reasonably be expected to affect them for the balance of their life”.

The applicant’s personal case

95. The sentencing Judge dealt with the applicant’s subjective case from [153]-[200]. There were a number of letters from friends and family members, a psychiatric report from Dr O’Dea, a supportive letter from a prison chaplain and a letter of apology from the applicant himself. There was also a sentence assessment report (“SAR”) from a community corrections officer based at Parklea.

96. Judge King took a guarded, if not sceptical, view of the material tendered on the applicant’s behalf. His Honour noted where the referees did not refer to the applicant’s remorse. When the applicant’s cousin said, “I know he is extremely contrite”, his Honour said, “[t]here is no statement as to how he might know the offender is extremely contrite, or whether that is just simply his belief.” His Honour appeared to place little to no weight on the letters of apology saying, “It is very simple to write a letter stating, ‘I have honest feelings of guilt, shame and remorse for the victims and their families.’”

97. While I would take a more benevolent view of the material tendered on the applicant’s behalf, the reality is that the subjective case does not detract from the grave criminality of the offences, the lengthy course of criminal conduct and its impact on the victims’ lives.

98. The applicant was born in June of 1961 and is now a little over 62 years old. At the time of sentence (and presumably now) he had no previous criminal history. Several of the referees spoke well of him. Given the many years of offending and the number of victims, it is inapt to describe the applicant as a person of good character and his lack of criminal history must be afforded limited weight.

99. While I take a guarded approach to the applicant’s letter of apology and the hearsay expressions of remorse and contrition, I note they are to be considered in the light of the applicant’s plea of guilty to the 26 offences. The author of the SAR said he verbalised concern for the victims and “did not minimise his role in the offending or the impacts it had on the victims and their family”.

100. The SAR assessed the applicant’s risk of re-offending as falling within the “Below Average Risk Category” relative to other adult male sex offenders. A senior psychologist at Parklea, based on statistical tools, estimated his “risk of re-offending over a five-year period [at] 3.15%” while noting, perhaps self-evidently, that these tools could not say whether “[the applicant] will or will not fall into that 3.1% cohort”. A “strong influence” on the risk of re-offending was the applicant’s age. The sentencing Judge found “his increasing age may assist in relation to rehabilitation and also to reducing the prospect of re-offending” and “it is not as though there is no prospect of rehabilitation”.

101. Dr O’Dea did not diagnose the applicant with any major psychiatric illness. He had a speech impediment, some trauma in his past which, in Dr O’Dea’s opinion, pointed to an alcohol use disorder. Unsurprisingly, the facts of the case supported a diagnosis of “paedophilia”. Using an “actuarial risk assessment tool, the STATIC 99 R”, Dr O’Dea assessed the applicant to be in the “Low Risk category for sexual re-offending”. However, this view was expressed tentatively, and Dr O’Dea stressed it turned on the applicant remaining alcohol free and not having access to children. With those risk factors in play, there remained some risk of re-offending.

102. Nothing in Dr O’Dea’s report reduces the applicant’s moral culpability.

103. Nothing in the subjective case reduced the objective seriousness of the individual offences or the lengthy course of offending.

Affidavit on re-sentencing

104. The applicant read an affidavit dated 2 March 2023 concerning his experience and performance since he was taken into custody. Paragraphs 2 and 3, which related to matters that existed before sentence, were not pressed.

105. The applicant had been transferred between several prisons and is currently held in protection at Lithgow Correctional Centre.

106. The applicant explained the onerous conditions in custody arising from precautions necessitated by the Covid-19 pandemic. He has had no in-person visits from his family since March 2021 when visits were restricted due to the Covid-19 precautions. Since he was transferred to Lithgow his family is too far away to travel to the gaol. The applicant has been locked in his cell or pod for around 160 days in total, including for one period of two months. This caused him to become extremely anxious.

107. He has completed three Corrective Services programs (Health Survival Tips, Remand DV Intervention and the Positive Lifestyle Programme) and began the RUSH programme, which is designed to assist with impulse control and decision making, before he was relocated. He expressed his willingness to undertake any course that is recommended.

108. He has maintained employment in every facility, including as “Head Sweeper”, and is enrolled in a TAFE Course providing a Certificate II in Warehousing. He has had no disciplinary charges since he was taken into custody.

The objective seriousness of the offences

109. Considered in isolation, several of the offences fell towards the lower end of seriousness for offences of their kind. However, each involved a significant breach of trust and must be considered in the context of many years of abuse of four children.

110. Other counts were more serious offences of their kind and, again, are to be evaluated in the context of the whole history of abuse.

111. It is unnecessary and of little utility to place the offences that do not attract a standard non-parole period on a putative scale of seriousness ranging from low, mid-range through to high range. However, where there is a standard non-parole period, and to give effect to the provision in s 54A(2) of the Sentencing Procedure Act, it is appropriate to do so.

112. There was an applicable standard non-parole period in relation to counts 2, 3, 5 and 8. As to counts 1 and 10, a standard non-parole period was introduced during the period alleged in the charge. That is, it is not clear whether those offences were committed after the introduction of the standard non-parole period for the particular offence. The sentencing Judge did not apply the standard non-parole period and the respondent did not contest that approach. [1] The standard non-parole period applies to an offence falling within the “middle of the range of objective seriousness”, and I record the following findings as the objective seriousness of the offending:

     1. Respondent’s Written Submissions, dated 5 April 2023, at footnotes 50-51.

• Count 2 – Below the mid-range of objective seriousness.

• Count 3 – Below the mid-range of objective seriousness.

• Count 5 – In the lower part of the mid-range of objective seriousness.

• Count 8 – Around the mid-range of objective seriousness.

113. Putting aside the relative seriousness of the individual offences, which will be reflected in the indicative sentences, the course of criminal conduct engaged in by the applicant was lengthy and extremely serious. This must be reflected in the aggregate sentence.

Objectives of punishment and relevant sentencing considerations

114. The purposes of sentencing are set out in s 3A of the Sentencing Procedure Act. Each has some relevance but of particular significance in the present case is the prevention of crime by deterring others from committing similar offences. The applicant must be held accountable, adequately punished, and this appalling course of conduct must be denounced. The sentence imposed must recognise the serious harm caused to the victims. Given the offender’s age and the length of the sentence imposed, the protection of the community is of less significance and personal deterrence will be achieved by the inevitably long sentence that must be imposed. The objective seriousness of the offending means the sentence must be of such a duration that the promotion of the applicant’s rehabilitation will receive less weight. Even so, the applicant’s rehabilitation remains an objective of the sentencing exercise.

115. Where applicable I have used the standard non-parole period in the manner explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, noting that pleas of guilty were entered in each instance and that two of those offences were well below the “middle of the range of objective seriousness” and one fell towards the lower end of the putative “middle of the range”.

116. I have taken into account the harm done to the victims by reference to the victim impact statements and by having regard to the trauma of sexual abuse as it is now understood: Sentencing Procedure Act, s 30E.

117. In relation to count 23, I have taken into account the sentence imposed by Judge Ellis on Ms TS (one year and one month). Unlike Judge King, I have not indicated precisely the same individual sentence as imposed on TS. However, I have applied the parity principle noting the differences in the subjective cases, the slightly different roles of each of the offenders and the egregious breach of trust involved in the child’s mother involving herself in the sexual abuse of her child. By the time of the offence in count 23, the applicant had abused three different children over many years. The sentence I will indicate is higher than that imposed on TS but no justifiable sense of grievance could be engendered in the applicant.

114. Like the sentencing Judge, I would impose an aggregate sentence. The table below sets out each of the individual indicative sentences I would have imposed if I were not imposing an aggregate sentence: Sentencing Procedure Act, s 53A(2)(b). In relation to each of the indicative sentences, I have applied a 25 per cent discount to the individual sentence I would otherwise have imposed. In compliance with s 54B(4), I have indicated the non-parole period for offences where a non-parole period existed at the time of the offence. Because these sentences are indicative in the context of an aggregate sentence, I have not reduced the sentences to days. There is some rounding and I have expressed the indicative sentences in decimal points (or fractions) of months.

OFFENCE	MAXIMUM PENALTY AND STANDARD NON-PAROLE PERIOD	ACTS CONSTITUTING OFFENCE	INDICATIVE SENTENCE (BEFORE 25% DISCOUNT)	INDICATIVE SENTENCE (AFTER 25% DISCOUNT)
Count 1: Aggravated indecent assault of child under 16 years, namely 10 years, contrary to s 61M(1) Crimes Act. (Between 15 October 2002 and 16 October 2004)	7 years imprisonment	The applicant grabbed GS, touched her inner thigh and rubbed his erect penis against her buttocks	1 year 8 months	1 year 3 months
Count 2: Aggravated indecent assault of child under 16 years, namely 11 years, contrary to s 61M(1) Crimes Act. (Between 15 October 2005 and 31 January 2006)	7 years imprisonment with a standard non-parole period of 5 years	The applicant touched GS’s vagina over her shorts	18 months	1 year, 1½ months with a NPP of 10 months
Count 3: Aggravated indecent assault of child under 16 years, namely 11 years, contrary to s 61M(1) Crimes Act. (Between 15 October 2005 and 31 January 2006)	7 years imprisonment with a standard non-parole period of 5 years	The applicant squeezed GS’s crotch and buttocks and rubbed her vagina over her shorts	18 months	1 year, 1½ months with a NPP of 10 months
Count 4: Aggravated sexual intercourse with a child between 10 and 14 years, namely 13 years, contrary to s 66C(2) Crimes Act. (Between 15 October 2005 and 31 January 2006)	20 years imprisonment	Right after count 3, the applicant reached under GS’s shorts and underwear and rubbed her clitoris	6 years	4½ years
Count 5: Aggravated indecent assault of child under 16 years, namely 13 years, contrary to s 61M(1) Crimes Act. (Between 15 October 2005 and 16 October 2006)	7 years imprisonment with a standard non-parole period of 5 years	The applicant unzipped GS’s shirt and grabbed, squeezed and licked her breasts and nipples	1 year 8 months	1 year 3 months with a NPP of 11.25 months
Count 6: Aggravated sexual intercourse with a child between 10 and 14 years, namely 13 years, contrary to s 66C(2) Crimes Act. (Between 15 October 2005 and 16 October 2006)	20 years imprisonment	The applicant placed his hands in GS’s pants and rubbed her vagina and clitoris in a rough manner. He also grabbed her breasts over her clothes and hugged her	6 years	4½ years
Count 7: Aggravated sexual intercourse with a child between 14 and 16 years, namely 15 years, contrary to s 66C(4) Crimes Act. (Between 15 October 2006 and 16 October 2007)	12 years imprisonment	The applicant rubbed GS’s clitoris and vagina while she was in the bathtub	5 years	3 years 9 months
Count 8: Aggravated indecent assault of child under 16 years, namely 15 years, contrary to s 61M(1) Crimes Act. (Between 15 October 2007 and 16 October 2008)	7 years imprisonment with a standard non-parole period of 5 years	The applicant separated GS’s legs, laid on top of her and grinded his body and erect penis against her body. He also kissed her, put his hands under her clothes and squeezed her breasts	2 years	18 months with a non-parole period of 13½ months
Count 9: Incite person under 16 years to commit act of indecency, namely 14 years, contrary to s 61N(1) Crimes Act. (Between 17 April 2002 and 18 April 2003)	2 years imprisonment	The applicant paid JG to watch him masturbate. He masturbated in front of JG and made her grab his penis until he ejaculated	1 year	9 months
Count 10: Aggravated indecent assault of child under 16 years, namely 14-15 years, contrary to s 61M(1) Crimes Act. (Between 17 April 2002 and 18 April 2003)	7 years imprisonment	The applicant grabbed JG’s breast over her clothes	1 year	9 months
Count 11: Incite person under 16 years to commit act of indecency, namely 14-15 years, contrary to s 61N(1) Crimes Act. (Between 17 April 2002 and 18 April 2004)	2 years imprisonment	The applicant paid JG to watch him masturbate. He masturbated in front of JG while saying sexual things to her	1 year	9 months
Count 12: Aggravated act of indecency with a child under 16 years, namely 12 years, contrary to s 61O(1) Crimes Act. (Between 20 October 2008 and 21 October 2009)	5 years imprisonment	The applicant masturbated in front of SS while they were both naked in the bedroom	18 months	13½ months
Count 13: Aggravated act of indecency with a child under 16 years, namely 12 years, contrary to s 61O(1) Crimes Act. (Between 20 October 2008 and 21 October 2009)	5 years imprisonment	The applicant masturbated in front of SS in the bedroom	18 months	13 ½ months
Count 14: Aggravated sexual intercourse with a child between 10 and 14 years, namely 12 years, contrary to s 66C(2) Crimes Act. (Between 20 October 2008 and 21 October 2009)	20 years imprisonment	While masturbating himself (count 13) the applicant rubbed SS’s clitoris. SS pressed her legs together and resisted, but the applicant opened her legs and rubbed her clitoris again	6 years	4½ years
Count 15: Incite aggravated act of indecency with a child under 16 years, namely 13 years, contrary to s 61O(1) Crimes Act. (Between 20 October 2009 and 21 October 2010)	5 years imprisonment	The applicant made SS get into the shower and masturbate his erect penis. SS’s mother entered the shower and masturbated the applicant in front of SS	2 years	18 months
Count 16: Aggravated sexual intercourse with a child between 10 and 14 years, namely 13 years, contrary to s 66C(2) Crimes Act. (Between 20 October 2009 and 21 October 2010)	20 years imprisonment	In the shower (count 15) the applicant rubbed SS’s clitoris while he was being masturbated by her and her mother	8 years	6 years
Count 17: Aggravated act of indecency with a child under 16 years, namely 14 years, contrary to s 61O(1) Crimes Act. (Between 20 October 2010 and 21 October 2011)	5 years imprisonment	The applicant masturbated himself in front of SS until he ejaculated	1 year	9 months
Count 18: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. (Between 20 October 2010 and 21 October 2011)	12 years imprisonment	While masturbating himself (count 17) the applicant rubbed SS’s clitoris	4 years	3 years
Count 19: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. (Between 20 October 2010 and 21 October 2011)	12 years imprisonment	The applicant rubbed SS’s clitoris	4 years	3 years
Count 20: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. (Between 20 October 2010 and 21 October 2011)	12 years imprisonment	After count 19, the applicant licked SS’s clitoris for some time	6 years	4 ½ years
Count 21: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. (Between 20 October 2010 and 21 October 2011)	12 years imprisonment	The applicant removed SS’s clothes and licked her clitoris	6 years	4 ½ years
Count 22: Aggravated sexual intercourse with a child between 14 and 16 years, namely 14 years, contrary to s 66C(4) Crimes Act. (Between 20 October 2010 and 21 October 2011)	12 years imprisonment	After count 21, the applicant inserted his finger into SS’s vagina. The applicant removed his finger when SS pulled away and continued to lick her clitoris. The applicant filmed count 20 and count 21	6 years	4 ½ years
Count 23: Aggravated act of indecency with a child under 16 years, namely 14 years, contrary to s 61O(1) Crimes Act. (Between 1 December 2010 and 31 January 2011)	5 years imprisonment	The applicant made SS film him having sex with her mother	2 years	18 months
Count 24: Aggravated act of indecency with a child under 16 years, namely 14 years, contrary to s 61O(1) Crimes Act. (Between 20 July 2012 and 21 October 2012)	5 years imprisonment	The applicant masturbated in front of SS until he ejaculated. He made her hold his balls and kiss his penis	2 years	18 months
Count 25: Aggravated sexual intercourse with a child between 14 and 16 years, namely 15 years, contrary to s 66C(4) Crimes Act. (Between 20 July 2012 and 21 October 2012)	12 years imprisonment	After count 24, the applicant made SS put his penis inside her mouth and thrusted his penis multiple times	6 years	4½ years
Count 26: Incite aggravated act of indecency with a child under 16 years, namely 12-13 years, contrary to s 61O(1) Crimes Act. (Between 12 July 2006 and 13 July 2008)	5 years imprisonment	The applicant made TS lick breast milk of his mother’s breast and suck her nipple	2 years	18 months

119. Turning to the issue of totality and to questions of what is often described – in setting an aggregate sentence – as “notional” accumulation, it is clear that none of those individual indicative sentences could encompass the criminality involved in the others. Further, the aggregate sentence must attempt to vindicate the dignity of each of the four victims and recognise the length of the period of offending. There must be a significant degree of notional accumulation within the sentence. Where two of the offences were constituted by different acts which occurred during a single incident, I would have ordered those sentences to be served largely, if not entirely, concurrently. There would also have been a degree of concurrence for the offences committed against an individual child. However, the length of the duration of the offending would require a degree of accumulation, especially with regards to GS and SS.

120. I would impose an aggregate sentence of 14 years.

121. I would make a finding of special circumstances under s 44(2) Sentencing Procedure Act and make a modest adjustment to the aggregate non-parole period. The special circumstances arise from the applicant’s age at the time of sentence, his likely age upon release, his need for a lengthy period of supervision upon release and the onerous conditions of his incarceration to this point. The adjustment is only to the extent of some six months because the aggregate non-parole period cannot be reduced further and remain sufficient to encompass the extent of the objective criminality of the applicant’s offending. I would impose a non-parole period of 10 years.

Orders

122. For the foregoing reasons, I propose the following orders:

1. Extend time in which to lodge the notice of intention to appeal.

2. Grant leave to appeal against sentence.

3. Allow the appeal.

4. Quash the aggregate sentence imposed in the District Court on 5 February 2021 and in lieu thereof impose an aggregate sentence of 14 years commencing 26 June 2019 and expiring on 25 June 2033 with a non-parole period of 10 years commencing 26 June 2019 and expiring on 25 June 2029.

5. The applicant will be eligible for release to parole at the expiration of the non-parole period.

6. Pursuant to s 25C of the Crimes (High Risk Offenders Act) 2006 (NSW), the applicant is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him.

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Endnote

Decision last updated: 30 June 2023