BR v R

[2021] NSWCCA 279

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

BR v R [2021] NSWCCA 279

Hearing dates:

23 July 2021

Decision date:

26 November 2021

Before:

Payne JA at [1];
Davies J at [6];
Ierace J at [7]

Decision:

(1)   Leave to appeal granted;

(2)   Appeal allowed;

(3)   Quash the sentence imposed in the District Court on 25 June 2020;

(4)   In lieu thereof, the applicant is sentenced to 28 years imprisonment, commencing on 17 May 2018 and expiring on 16 May 2046, with a non-parole period of 20 years, expiring on 16 May 2038.

Catchwords:

CRIME – Appeals – Appeal against sentence – Thirteen counts of child sexual offences committed against three victims over a period of 19 years – Ten Form 1 offences taken into account – Where applicant sentenced to 30 years imprisonment with a non-parole period of 22 years and 6 months – Whether aggregate sentence manifestly excessive – Where psychologist diagnosed applicant with major depressive disorder and generalised anxiety disorder at the time of sentence – Where sentencing judge gave little or no weight to psychologist’s report – Whether applicant’s mental condition relevant to his experience of incarceration – Whether sentencing judge adequately considered the impact of protective custody on the applicant

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M, 66A, 66C, 61E, 578A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 25D, 25AA, 33, 44, 53A, 54B

Drug Misuse and Trafficking Act 1985 (NSW), s 10

Cases Cited:

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

C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81

Cabezuela v R [2020] NSWCCA 107

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

Ewan v R [2019] NSWCCA 17

Georgopolous v R [2010] NSWCCA 246

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

Khawaja v R [2014] NSWCCA 80

MRW v R [2011] NSWCCA 260

PD v R [2012] NSWCCA 242

R v BR [2020] NSWDC 335

R v Holder (1983) 3 NSWLR 245

R v Scott [2003] NSWCCA 28

R v Van Ryn [2016] NSWCCA 1

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

Sivell v R [2009] NSWCCA 286

State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603

WM v R [2020] NSWCCA 96

Zahab v R [2021] NSWCCA 7

Category:

Principal judgment

Parties:

BR (Applicant)
Regina

Representation:

Counsel:
Mr G D Wendler (Applicant)
Ms E Jones (Crown)

Solicitors:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2018/00235223; 2018/00207895; 2018/00154461

 Decision under appeal 

Court or tribunal:

District Court

Citation:

[2020] NSWDC 335

Date of Decision:

25 June 2020

Before:

Wilson SC DCJ

File Number(s):

2018/00154461

Judgment

1. PAYNE JA: I have read the decision of Ierace J in draft. I agree with the orders proposed by his Honour and with his reasons.

2. The sole ground of appeal is that the sentence imposed by Wilson DCJ was manifestly excessive. That finding, manifest excess, like manifest inadequacy, is a conclusion. Despite the gravity and extent of the offending in this case, a sentence of 30 years with a non-parole period of 22 years and 6 months following a plea of guilty in the subjective circumstances of the offender was, as Ierace J explains, manifestly excessive.

3. There is one additional matter I wish to address. The approach of the sentencing judge to the evidence of the psychologist, Peter Jenkins, cannot be supported. It may be correct, as his Honour opined, that Mr Jenkins, a psychologist, was not in as good a position as a psychiatrist to express opinions about depression, anxiety and the satisfaction of the various DSM-5 requirements. I have made various criticisms of the evidence of psychologists, as compared to psychiatrists, in a related area: State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603.

4. But in the present case, the psychologist’s report was tendered without objection. The criticisms made by the sentencing judge of that evidence were not raised by the Crown. Although no ground of appeal addressed this issue, I regard the sentencing judge’s trenchant criticisms of Mr Jenkins’ evidence as unwarranted.

5. On resentence, I agree with the analysis of Ierace J.

6. DAVIES J: I agree with Ierace J.

7. IERACE J: The applicant seeks leave to appeal against a sentence of imprisonment imposed on him in the District Court by his Honour Judge Wilson SC (“the sentencing judge”) on 25 June 2020 for 13 child sexual offences, committed between 1991 and 2010: R v BR [2020] NSWDC 335. All were the subject of guilty pleas. Ten of the offences were committed against the applicant’s biological daughter (“AB”), two against a stepdaughter (“CD”) and one against a step-granddaughter (“XY”). Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), the applicant is not named in order to protect against identification of the victims.

8. His Honour imposed an aggregate sentence of 30 years imprisonment, commencing on 17 May 2018 and expiring on 16 May 2048, with a non-parole period of 22 years and 6 months. The applicant will be eligible for release to parole on 16 November 2040.

9. The applicant’s sole ground of appeal is that the sentence imposed was manifestly excessive.

The offences

10. The offences, the relevant victim, the sentencing judge’s findings of objective seriousness and the indicative sentences specified by his Honour are as follows:

DC No.	Offence	Date of Offence	Maximum Penalty (Standard Non-Parole Period)	Finding of Objective Seriousness	Indicative Sentence (after 5% deduction for guilty plea)
1*	Sexual intercourse with a person under the age of 10 years s 66A, Crimes Act (AB)	28.02.1991 – 31.12.1991	20 years imprisonment (N/A)	Just above the mid-range	9 years, 6 months imprisonment
2*	Sexual intercourse with a person under the age of 10 years s 66A, Crimes Act (AB)	28.02.1992 – 31.01.1995	20 years imprisonment (N/A)	At the mid-range	7 years, 7 months imprisonment
3	Sexual intercourse with a person under the age of 10 years s 66A, Crimes Act (AB)	25.02.1995 – 14.10.1996	20 years imprisonment (N/A)	Just above the mid-range	9 years, 6 months imprisonment
4	Sexual intercourse with a person under the age of 10 years s 66A, Crimes Act (AB)	25.02.1995 – 14.10.1996	20 years imprisonment (N/A)	At the mid-range	7 years, 7 months imprisonment
5	Sexual intercourse with a person under the age of 10 years s 66A, Crimes Act (AB)	01.01.1995 – 31.12.1995	20 years imprisonment (N/A)	Well above the mid-range	11 years, 4 months imprisonment
6*	Sexual intercourse with a person between 10 and 16 years while under authority s 66C(2), Crimes Act (CD)	01.01.1995 – 31.12.1995	10 years imprisonment (N/A)	Just above the mid-range	4 years, 9 months imprisonment
7*	Aggravated indecent assault – under the age of 16 years s 61M(1), Crimes Act (CD)	01.01.1995 – 31.12.1995	7 years imprisonment (N/A)	At the mid-range	1 year, 10 months imprisonment
8*	Sexual intercourse with a person between 10 and 16 years while under authority s 66C(2), Crimes Act (AB)	01.01.1998 – 31.12.1999	10 years imprisonment (N/A)	Well above the mid-range	5 years, 8 months imprisonment
9*	Sexual intercourse with a person between 10 and 16 years while under authority s 66C(2), Crimes Act (AB)	01.01.1998 – 31.12.1999	10 years imprisonment (N/A)	At about the mid-range	3 years, 9 months imprisonment
10*	Sexual intercourse with a person between 10 and 16 years while under authority s 66C(2), Crimes Act (AB)	28.02.1998 – 31.12.1999	10 years imprisonment (N/A)	Just above the mid-range	4 years, 9 months imprisonment
11*	Sexual intercourse with a person between 10 and 16 years while under authority s 66C(2), Crimes Act (AB)	01.12.1998 – 31.12.1999	10 years imprisonment (N/A)	At the mid-range	4 years, 9 months imprisonment
12	Sexual intercourse with a person between 10 and 16 years while under authority s 66C(2), Crimes Act (AB)	01.12.1998 – 31.12.1999	10 years imprisonment (N/A)	At the mid-range	4 years, 9 months imprisonment
13*	Indecent assault person under 16 years (DV) s 61M(2), Crimes Act (XY)	01.07.2010 – 31.12.2010	10 years imprisonment (8 years)	Just below the mid-range	1 year, 10 months imprisonment (1 year, 3 months non-parole period)

*Charge(s) attaching on a Form 1

11. The applicant requested that the sentencing judge take the following 10 additional offences on Form 1 certificates into account (“the Form 1 offences”), pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”):

Relevant Count	Offence	Maximum Penalty
Count 1	Indecent assault s 61E(1A), Crimes Act (AB)	6 years imprisonment
Count 1	Aggravated indecent assault s 61M(2), Crimes Act (AB)	10 years imprisonment
Count 2	Aggravated indecent assault s 61M(2), Crimes Act (AB)	10 years imprisonment
Count 6	Aggravated indecent assault s 61M(1), Crimes Act (CD)	7 years imprisonment
Count 7	Aggravated indecent assault s 61M(1), Crimes Act (CD)	7 years imprisonment
Count 8	Aggravated indecent assault s 61M(1), Crimes Act (AB)	7 years imprisonment
Count 9	Sexual intercourse with a person between 10 and 16 years while under authority s 66C(2), Crimes Act (AB)	10 years imprisonment
Count 10	Sexual intercourse with a person between 10 and 16 years while under authority s 66C(2), Crimes Act (AB)	10 years imprisonment
Count 11	Aggravated indecent assault s 61M(1), Crimes Act (AB)	7 years imprisonment
Count 13	Possess prohibited drug s 10(1), Drug Misuse and Trafficking Act 1985 (NSW)	2 years imprisonment and/or 20 penalty units

Factual background

12. Until 1994, the applicant was in a relationship with a woman I shall refer to as “Partner 1”, with whom he had three children, the eldest being AB, who was born in 1987. From at least 1991, the family resided in a house at Cranebrook.

13. In 1994, while Partner 1 was pregnant with their third child, the applicant commenced a relationship with a woman I will refer to as “Partner 2”, who lived next door to the applicant and his family with her three children, one of whom is CD, who was born in 1983. The applicant moved in with Partner 2 but retained a key to Partner 1’s house and would move freely between the adjacent houses.

14. In about 1995, the applicant and Partner 2 moved from Cranebrook to Lithgow.

15. XY is a child of one of CD’s siblings. She was born in 1998, while her grandmother (Partner 2) was still in a relationship with the applicant. By 2010, the applicant and Partner 2 were residing in a granny flat at Oxley Park.

16. The relevant facts concerning the 13 indicted offences and 10 Form 1 offences were agreed by the parties for the purposes of the sentence proceedings. They are to the following effect in respect of each victim, in the approximate chronological order in which they were committed.

Offences committed against AB

First Form 1 offence to count 1

17. The first offence in time was against AB. It occurred between 28 February and 31 December 1991 when AB was aged four and the applicant was aged 24 or 25, at the family’s residence in Cranebrook. The applicant took her into the shower where they stood together naked under the running water. The applicant rubbed his erect penis against the outside of AB’s mouth for five to 10 minutes, then removed her from the shower, knelt in front of her and said, “Next time you’re going to have to open your mouth”. This was the basis of the charge of indecent assault, contrary to s 61E(1A) of the Crimes Act.

Count 1

18. Within days of that incident, the applicant again took AB into the shower and rubbed his erect penis against the outside of her mouth. The applicant whispered, “open”. She obliged, and the applicant inserted his penis into her mouth. The applicant pulled her chin up with his hand, causing her mouth to close around his penis, and rocked back and forth so that his penis moved in and out of her mouth. AB looked up at the applicant, confused. The applicant clenched his hands and made a grinding noise with his teeth. After about five minutes, the applicant removed his penis from her mouth and said, “get out and get dressed”. AB got out of the shower and left the bathroom. This was the basis of the charge of sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act.

Second Form 1 offence to count 1

19. One evening between 28 February and 31 December 1992, when AB was aged five, she was watching a film in the living room with the applicant, Partner 1 (her mother) and her brother. The applicant and Partner 1 were seated on the lounge with their feet on a coffee table and a blanket over their laps. AB and her brother were playing on the ground under their parents’ legs, pretending the blanket was a tent. At some point during the film, while Partner 1 was asleep on the lounge next to AB’s brother and the applicant, the applicant whispered to AB, “Go under the blanket and grab my dick”. AB crawled under the blanket and reached between the applicant’s legs. The applicant took hold of AB’s hand, placed it around his penis and moved her hand up and down his erect penis. He then let go of her hand and stated, “Keep doing that”.

20. AB did so for 10 to 15 minutes, causing her hand to hurt. The applicant picked up a towel from beside the lounge and placed it under the blanket at the end of his penis. He moved AB’s hand away and continued without her assistance. He got up, washed the towel in the kitchen and then placed it in the laundry. This was the basis of the charge of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act.

Form 1 offence to count 2

21. As noted, the applicant and Partner 1 separated towards the end of 1994, when the applicant moved next door.

22. On an occasion between 28 February 1992 and 31 January 1995, when AB was aged between five and seven, the applicant entered her bedroom wearing only his underwear and got into bed with her. The applicant kissed her on the neck, tugged at her ear with his teeth and stroked her hair. He then placed his left hand inside her pants on the inside of her underwear and used his fingers to rub the outside of her vagina. This was the basis of the charge of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act.

Count 2

23. After about five minutes, the applicant got up, stood against the bed and pulled down his underwear, revealing his penis which was erect. The applicant said, “Sit up on the side of your bed”. AB obliged. The applicant then said, “Put it in your mouth, suck my dick”. AB opened her mouth, the applicant inserted his penis, grabbed hold of the bunk bed above AB’s bed and rocked back and forth causing his penis to move in and out of her mouth. After about five minutes, the applicant removed his penis and ejaculated into a small towel. The applicant left the bedroom and AB went to sleep. This was the basis of the charge of sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act.

Count 3

24. On an occasion between 25 February 1995 and 14 October 1996, when AB was aged eight or nine, the applicant sent AB to a shed on the property of her residence at that time (it is unclear from the agreed facts if it was the residence at Cranebrook or a later residence). The applicant arrived moments later, closed the door and removed his pants and underwear. He then picked AB up and sat her on a chest of drawers. The applicant kissed her vagina then separated the lips of her vagina with his fingers and licked in between her vaginal lips for about five to 10 minutes. He stopped, kissed her belly button a couple of times, and as he picked her up off the chest of drawers and placed her on the ground, said “I love you”. This was the basis of the charge of sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act.

Count 4

25. On a later occasion between 25 February 1995 and 14 October 1996, the applicant again sent AB to the same shed. The applicant arrived moments later with a towel in his hands. He placed the towel on the chest of drawers and pulled his erect penis out of his pants and over his waist band. AB bent over slightly and the applicant put his penis into her mouth. The applicant rocked back and forth, causing his penis to move in and out of her mouth for several minutes. The applicant then suddenly removed his penis from her mouth, put it back into his pants and said, “[your brother] is coming”. They both left the shed. This was the basis of the charge of sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act.

Count 5

26. On an occasion between 1 January and 31 December 1995, when AB was aged seven or eight and the applicant and Partner 2 were preparing to move from Cranebrook to Lithgow, the applicant arranged for AB to sleep at their house the night before they moved. The applicant and AB slept on a fold-out double lounge in the living area. The applicant’s two stepdaughters slept on the floor nearby. Prior to going to sleep, the applicant removed AB’s pants and underwear and moved in between her legs. He rubbed his erect penis between the lips of her vagina and attempted to push it into her vagina, partially penetrating it, for about seven or eight minutes. When one of his stepdaughters laughed, the applicant suddenly stopped and lay back down on the lounge. After a few minutes, the applicant got AB to sit on his lap and again attempted to insert his penis into her vagina, but was unable to because AB moved about to make it difficult for him to do so. Eventually, the applicant gave up and allowed AB to dress and go to sleep. This was the basis of the charge of sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act.

Form 1 offence to count 8

27. On two occasions between 1 January 1998 and 31 December 1999, when AB was aged between 10 and 12, she visited the applicant at Lithgow.

28. On the first occasion AB visited the applicant at Lithgow, it was at a house that had bushland behind it. During the visit, the applicant approached AB in the bushland, stood directly in front of her and knelt slightly. He put his left hand inside her pants on the inside of her underwear and used his fingers to rub the outside of her vagina. As he did so, he kissed her on the lips and repeatedly thrusted his groin against her. After a short time, the applicant stopped and they walked back to the house. This was the basis of the charge of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act.

Count 8

29. Later on that occasion, AB and the applicant entered a detached shed located at the rear of the property. The applicant removed AB’s pants and underwear and sat her on a 44-gallon drum or something similar. The applicant rubbed the tip of his erect penis between the lips of AB’s vagina, across her clitoris and the opening of her vaginal canal, partly penetrating it. This was the basis of the charge of sexual intercourse with a person between 10 and 16 years of age while under authority, contrary to s 66C(2) of the Crimes Act.

Form 1 offence to count 9

30. The applicant then kissed AB’s vagina, separated the lips of her vagina with his fingers and used his tongue to lick in between the lips of her vagina. This continued for about five minutes. This was the basis of the charge of sexual intercourse with a person between 10 and 16 years of age while under authority, contrary to s 66C(2) of the Crimes Act.

Count 9

31. The applicant then picked AB up off the drum and stood her on the ground. AB put her pants and underwear back on. The applicant began thrusting his erect penis against her stomach on the outside of her clothing, after which he pushed against the top of her head with his hand and said, “Suck my dick”. AB knelt and put the applicant’s penis into her mouth. The applicant rocked back and forth, causing his penis to move in and out of her mouth. This continued for about 10 minutes, when the applicant ejaculated in a towel. This was the basis of the charge of sexual intercourse with a person between 10 and 16 years of age while under authority, contrary to s 66C(2) of the Crimes Act.

Count 10

32. On the second occasion AB visited the applicant at Lithgow, the applicant was residing in a two-storey apartment in which the only downstairs rooms were the laundry and bathroom.

33. One evening before dinner, AB was having a shower downstairs when the applicant entered the bathroom and said, “Go upstairs and get dressed and get me my towel”. AB went upstairs, dressed, took a towel from the applicant’s bedroom and returned to the bathroom downstairs, where the applicant was having a shower. AB briefly sat on the closed toilet seat. The applicant said, “Come and stand in front of the shower”. The applicant opened the shower curtain, stood in front of AB with his erect penis and said, “Suck it”. AB put the applicant’s erect penis into her mouth and he rocked back and forth causing his penis to move in and out. This continued for five to 10 minutes until the applicant ejaculated into a towel. This was the basis of the charge of sexual intercourse with a person between 10 and 16 years of age while under authority, contrary to s 66C(2) of the Crimes Act.

Form 1 offence to count 10

34. Later that evening, when AB was asleep in bed, the applicant woke her, grabbed her hand and walked her into the lounge room. The applicant laid AB on the lounge and removed her pants and underwear. The applicant kissed her vagina, separated the lips of her vagina with his fingers and licked in between the lips of her vagina. As the applicant did this, he groped her breasts. This was the basis of the charge of sexual intercourse with a person between 10 and 16 years of age while under authority, contrary to s 66C(2) of the Crimes Act.

Count 11

35. After about five minutes, the applicant inserted his finger into AB’s vagina and moved it back and forth. He leant over and kissed her on her lips and neck. This continued for 10 to 15 minutes. This was the basis of the charge of sexual intercourse with a person between 10 and 16 years of age while under authority, contrary to s 66C(2) of the Crimes Act.

Form 1 offence to count 11

36. The applicant then sat AB up on the lounge and sat next to her. He placed her hand onto his erect penis and made her stroke it. This was the basis of the charge of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act.

Count 12

37. After about five minutes, the applicant said, “kneel in front of me and finish with your mouth”. AB knelt on the floor in front of the applicant and put his penis into her mouth. The applicant grabbed hold of AB’s head and moved it up and down on his penis. This continued for about five minutes, until the applicant ejaculated into a towel. AB then got up and went to bed. This was the basis of the charge of sexual intercourse with a person between 10 and 16 years of age while under authority, contrary to s 66C(2) of the Crimes Act.

Offences committed against CD

Form 1 offence to count 6

38. On an occasion in 1995, when CD was in Year 6 and aged 11 or 12, she was at their home in Cranebrook with her mother (Partner 2), the applicant and her younger sister. CD’s mother and sister were asleep in bed while CD watched television in the lounge room with the applicant. CD and the applicant were seated on separate lounges. The applicant said to CD, “come over here and sit next to me”. CD obliged. The applicant kissed CD on the lips and cuddled her. CD could smell alcohol on the applicant’s breath. This was the basis of the charge of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act.

Count 6

39. The applicant then removed his penis from his pants. He pushed CD’s head down, causing her mouth to touch his penis, and said, “suck it”. CD put the applicant’s penis in her mouth. The applicant took hold of her head and caused it to move up and down on his penis. This continued for several minutes, after which CD got up and went to bed. This was the basis of the charge of sexual intercourse with a person between 10 and 16 years of age while under authority, contrary to s 66C(2) of the Crimes Act.

Count 7

40. During the same year, when CD was aged 11 or 12, she was at home with the applicant and her brother, who was in his bedroom with the door closed, listening to loud heavy metal music. The applicant guided CD into the laundry, where he pressed his body up against her and kissed her on the lips. He removed his penis from his pants and rubbed it against her. After a few minutes, a noise could be heard which prompted the applicant to put his penis back into his pants and walk away. CD noticed a clear coloured liquid on her shirt around her stomach area. She immediately removed her shirt and threw it in the bin. This was the basis of the charge of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act.

Form 1 offence to count 7

41. On a Thursday evening in the same year, Partner 2 returned home from shopping. The applicant and Partner 2 began drinking from a bottle of whisky which they had purchased, resulting in Partner 2 “passing out”. The applicant left the house for a short time and CD went to bed.

42. When the applicant returned home, he entered CD’s bedroom. He lay on top of her in her bed and thrust himself against her in a sexual motion. He said, “let’s make love”. CD responded, “don’t you need a condom?”, to which the applicant stated, “making love isn’t always about sex”. CD said, “what if mum comes in?”. CD could not recall how the conversation ended, but nothing further occurred. This was the basis of the charge of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act.

Offences committed against XY

43. As noted, XY is Partner 2’s grandchild and CD’s niece. Throughout XY’s childhood, about once a fortnight, she would visit Partner 2 and the applicant at their residence.

44. Towards the end of 2010, when XY was aged 11 or 12 and the applicant and Partner 2 resided in the granny flat at Oxley Park, XY would stay overnight with them. She would sleep in a bed in an area in the living room separated from the rest of the room by a curtain.

Count 13

45. On an occasion between 1 July and 31 December 2010, when the applicant was at home with XY and Partner 2 was at work, XY went to bed while the applicant was on the lounge drinking alcohol. She was woken by the applicant unzipping her jacket. The applicant ran back into the living room and XY went back to sleep. Sometime later, XY was again woken by the applicant unzipping her jacket. The applicant again ran back into the living room. XY moved her mattress into the living room and placed it on the floor in front of the lounges, hoping that would stop the applicant “creeping in on her while she was sleeping”, and went back to sleep.

46. Soon after, XY woke to find her jacket unzipped and the applicant’s hand beneath her clothing, touching her chest area just above her breasts. XY screamed, causing the applicant to jump back and sit on the lounge. XY moved her mattress again, this time behind the curtain, and continued to cry and scream for several hours. The applicant tried to console XY, but she told him not to touch her or come near her. This was the basis of the charge of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act.

A drug offence

Form 1 offence to count 13

47. The applicant was arrested on 17 May 2018. When he was taken into custody and searched, six Oxycontin tablets were found in his wallet. The applicant admitted to police that he possessed them without a prescription and was charged with possessing a prohibited drug, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

Complaints and arrest

Complaint by CD

48. In 1995, following the aggravated indecent assault against CD which is the Form 1 offence to count 7, CD wrote a letter to Partner 2 outlining the assaults against her and placed it under Partner 2’s pillow. Later that evening, Partner 2 got CD out of bed and confronted her and the applicant about the letter. The applicant denied the allegations, and Partner 2 told CD to go back to bed. Nothing more came of the letter.

49. In 1997, CD told a family friend with whom she was living about the assaults. The family friend drove CD to the local police station, where the matter was reported. The agreed facts state that: “An investigation commenced but Police did not pursue the matter as [Partner 2] was not supportive of [CD] at that time”.

Complaint by XY

50. Several days after the aggravated indecent assault against XY in 2010, XY received some messages from the applicant via Facebook, one of which was to the effect of, “do you hate me … I’m sorry I just needed a look”. XY’s parents saw her crying. She was worried about the consequences of making a full disclosure to her parents, and instead told them that she had seen the applicant watching her getting dressed after showering at her grandmother’s house. XY then showed her mother the Facebook messages from the applicant, who in turn showed them to XY’s father. XY did not speak to the applicant again and ceased visiting her grandmother’s house.

51. In 2014, during the course of a family celebration of her 16^th birthday, XY disclosed the incident to her aunt, CD.

Complaint by AB

52. In April 2018, AB disclosed the assaults to her partner and then to police. On 15 May 2018, AB had a telephone conversation with the applicant about the assaults, which was lawfully recorded by police, pursuant to a surveillance device warrant. During the call, the applicant stated, “I remember stuff like, little thoughts and I fucking touched [AB] and then I get that sick feeling thinking about it”. The applicant claimed to AB that long-term drug and alcohol abuse had left him with a poor memory and as a result he had no specific recollection of the incidents. Towards the end of the call, the following exchange occurred:

“[AB]: You do admit that you did this to me though, like you acknowledge you did this to me?

[Applicant]: Of course I do. Yes, I know I done bad things to you … I’m sorry.

[AB]: Yeah I know but it’s not just bad things, do you admit that you molested me, is that what you’re doing?

[Applicant]: Yes, like what I said I get flashbacks with no details its more of a thought that you know, that I done it and it makes me fucking ill.”

The applicant’s arrest

53. As noted, the applicant was arrested on 17 May 2018. He participated in a video-recorded interview during which he denied the allegations against him, although he maintained that years of alcohol and substance abuse had left him with a very poor memory. He was refused bail and held on remand until his sentence.

54. Police approached CD and XY in May and July 2018 respectively and obtained a statement of complaint from each of them.

Procedural history

55. At the case conference which was conducted pursuant to s 70 of the Criminal Procedure Act 1986 (NSW) while the matter was in the Local Court, the applicant rejected an offer from the NSW Office of the Director of Public Prosecutions for him to plead to five counts of sexual intercourse contrary to s 66A of the Crimes Act and five counts of sexual intercourse contrary to s 66C(2) of the Crimes Act, with a further eight offences to be taken into account on a Form 1, in full satisfaction of the charges against AB. In relation to CD, the applicant rejected an offer to plead to a single count of sexual intercourse contrary to s 66C(2) of the Crimes Act with a further two offences to be taken into account on a Form 1 and, in relation to XY, an offer to plead to a single count of indecent assault contrary to s 61M(2) of the Crimes Act.

56. On arraignment in the District Court, the applicant entered pleas of not guilty to 22 counts on an indictment of sexual intercourse and aggravated indecent assaults. A trial date of 3 February 2020 was set. On that date, the applicant made an offer to the Crown to plead guilty to certain counts, prompting an adjournment to allow discussion between the parties. On 6 February 2020, the applicant pleaded guilty to the abovementioned 13 counts on a fresh indictment and asked the Court to take into account the 10 Form 1 offences.

57. The sentence hearing took place on 6 May 2020. The date of 25 June 2020 was fixed for the sentence to be handed down. On that date, the Crown presented an amended indictment in which some offence dates had been changed and some of the pleadings of the s 66C(2) offences had been corrected, to accord with the terms of the section. The applicant was re-arraigned and entered pleas of guilty. Four amended forms of the Form 1 offences, which had revised offence dates, were handed up by the Crown. The applicant formally confirmed to the sentencing judge that he wished to have those offences taken into account. A revised set of agreed facts was tendered, reflecting the changes made to the offence dates in the amended indictment and to the amended four Form 1 offences.

Proceedings on sentence

The applicant’s criminal history

58. The sentence bundle that was tendered at the sentence hearing by the Crown included the applicant’s criminal history. The earliest entries concerned minor matters in the Children’s Court. He has convictions as an adult for drug offences, the most serious being concurrent sentences of 3 months imprisonment in 2003 for possessing a prohibited drug and self-administering, or attempting to self-administer, a prohibited drug. He has convictions for driving with a high-range prescribed concentration of alcohol (“PCA”) (19 September 1990) and mid-range PCA (15 December 1993). He has convictions for other driving offences, including driving whilst disqualified. The date of commission of his most recent offences, other than for the indecent assault on XY in 2010, was in 2005, for driving whilst disqualified and driving uninsured and unregistered. His custodial history disclosed no disciplinary matters whilst he was detained on remand.

The victim impact statements

59. Each of the victims wrote a victim impact statement which was tendered and read out at the sentence hearing.

60. AB referred to the devastating emotional impact of becoming aware, as she grew older, that the applicant’s offending behaviour against her was wrong, and how that realisation became a point of differentiation that prevented her from socialising normally. She particularly referred to the damage done by the applicant’s offending behaviour to her relationships with her mother and her children, and the lasting serious damage to her mental health in the form of a diagnosis of post-traumatic stress disorder and anxiety that is so severe it requires treatment by medication.

61. CD stated that her relationship with her mother was so damaged by the applicant’s offences against her that she became homeless at 12 years of age and subsequently was made a ward of the State. She was “moved from one foster carer to another” and attended seven different high schools. The applicant’s sexual abuse transformed her from a happy child to one who was very angry. She resorted to drugs and alcohol to numb the negative mental states arising from the applicant’s assaults. She explained how his destruction of her sense of trust of others had infected her relationships with her own children by her becoming over-anxious for their safety, causing them to distance themselves from her.

62. XY explained how the applicant’s gaining of her trust as his step-grandchild and then exploiting it with his sexual abuse had strained her relationships with her parents and led to her rejecting her grandmother altogether, holding her responsible for not having prevented the applicant from sexually assaulting her. Her capacity to form relationships of trust with males, and to maintain what had been a close and trusting relationship with her father, was seriously damaged. She has struggled with her mental health as she continues to suffer flashbacks to the applicant’s offending behaviour, which affects every aspect of her personal and working life.

The case for the applicant

63. The case for the applicant comprised the tender of a letter from the prison chaplain, a psychologist’s report and sworn evidence by him.

64. The chaplain stated that the applicant had approached him seeking ways to “help him with his life”. The applicant completed an eight-week, eight-session program with the chaplain, which involved such issues as “self-awareness”, “stress” and “future directions”.

The psychologist’s report

65. The applicant tendered a report by a psychologist, dated 11 March 2020. The psychologist interviewed the applicant in prison via an audio-visual link on that date.

66. In his report, the psychologist related the applicant’s account to him of his background and relationship history. The applicant was born and raised in Penrith. He experienced learning difficulties as a child and attended school until the end of Year 9, after which he pursued employment as a factory worker and labourer for five years and then moved to Darwin, where he was employed as a handyman at a Hotel. He returned to Sydney following a death in his family and obtained employment with his brother.

67. The applicant reported having three significant relationships: with Partner 1, lasting six years; with Partner 2, lasting 17 years; and a third relationship that lasted for one year and produced a child who was aged 15 at the time of the report. The applicant told the psychologist that his two sons from his relationship with Partner 1 contact him regularly.

68. As to the applicant’s history of drug and alcohol use, the psychologist stated:

“[The applicant] was first introduced to alcohol at age 11, and commenced smoking cannabis at 13 years old. During his teenage years he also tried other drugs including LSD and cocaine. At 17 he began using [heroin]. At age 20 he gave up cannabis and [heroin] but continued to drink alcohol heavily at times. [The applicant] recognises now the serious impact his early drug and alcohol use had upon his development of mental health issues. He was diagnosed with depression and anxiety but did not consistently follow through with treatment. He was medicated with [Serapax] and [Valium] by doctors but also self-medicated with intravenous methadone and occasional [heroin].”

69. With respect to the issue of remorse, the psychologist stated:

“… [the applicant] states being disgusted by his actions and is deeply remorseful for the impact on the victims. He accepts full responsibility for his behaviours but also recognises that he was not mentally functioning well due to his drug abuse and depression/anxiety. He has been clean of [heroin] for the past twenty years.”

70. The psychologist administered two assessment tools to the applicant, one being the Depression, Anxiety and Stress Scale (“DASS-42”), which he described as a “set of three self-report scales designed to measure the negative emotional states of depression, anxiety and stress”. The applicant’s scores on the DASS-42 indicated diagnoses of depression (severe clinical range), anxiety (severe clinical range) and stress (moderate clinical range).

71. The other assessment tool was the Personality Assessment Inventory (“PAI”) which the psychologist described as:

“… a multi-scale test of psychological functioning that assesses constructs relevant to personality and psychopathology evaluation (eg. depression, anxiety, aggression) in various contexts …

The PAI has four kinds of scales: 1) validity scales, which measure the respondent’s approach to the test, including faking good or bad, exaggeration, or defensiveness; 2) clinical scales, which correspond to psychiatric diagnostic categories; 3) treatment consideration scales, which assess factors that may relate to treatment of clinical disorders or other risk factors but which are not captured in psychiatric diagnoses (eg. suicidal ideation); and 4) interpersonal scales which provide indicators of interpersonal dimensions of personality functioning.”

72. With respect to the validity scales, the psychologist stated that:

“The scores for these indicators fall in the normal range, suggesting that [the applicant] answered in a reasonably forthright manner and did not attempt to present an unrealistic or inaccurate impression that was either more negative or more positive than the clinical picture would warrant.”

73. With respect to the clinical scales, the psychologist reported:

“The PAI clinical profile is marked by significant elevations across a number of different scales, indicating a broad range of clinical features and increasing the possibility of multiple diagnoses. The configuration of the clinical scales suggests a person with a history of substance abuse problems who is quite unhappy and pessimistic. His drug use has probably led to severe impairment in his ability to maintain his social role expectations, and his [behaviour] has most likely alienated many of the people who were once close to him. Such setbacks have left [the applicant] with significant guilt and rumination about his life circumstances, and the urge to use drugs may be at the [centre] of many of these ruminations. His depression and drug use may be related in a number of different ways; the depression could be driving the use of drugs or it could be a consequence of the disruption associated with his substance abuse. Regardless of whether the depression is primary or secondary, it has probably left [the applicant] quite pessimistic about his prospects for change or improvement.

[The applicant] reports a number of difficulties consistent with a significant depressive experience. He is likely to be plagued by thoughts of worthlessness, hopelessness, and personal failure. He admits openly to feelings of sadness, a loss of interest in normal activities, and a loss of sense of pleasure in things that were previously enjoyed. He is likely to show a disturbance in sleep pattern, a decrease in level of energy and sexual interest, and a loss of appetite and/or weight. Psychomotor slowing might also be expected.

[The applicant] indicates that his use of drugs has been sufficient to have had negative consequences on his life. Problems associated with drug use appear to be noteworthy, including strained interpersonal relationships, vocational and/or legal problems, and possible medical complications.

[The applicant] reports that his use of alcohol has had a negative impact on his life. Alcohol-related problems are likely, including difficulties in interpersonal relationships, difficulties on the job, and possible health complications.

[The applicant] indicates that he is experiencing specific fears or anxiety surrounding some situations. The pattern of responses reveals that he is likely to display significant symptoms related to traumatic stress. He has likely experienced a disturbing traumatic event in the past – an event that continues to distress him and produce recurrent episodes of anxiety. …

[The applicant] indicates that he is uncertain and indecisive about many major life issues and has little sense of direction or purpose in his life as it currently stands.

According to [the applicant’s] self-report, he describes NO significant problems in the following areas: unusual thoughts or peculiar experiences; antisocial [behaviour]; problems with empathy; undue suspiciousness or hostility; unusually elevated mood or heightened activity; marked anxiety; difficulties with health or physical functioning.”

74. The psychologist noted that the applicant did not report thoughts of self-harm or claim to have issues concerning anger management. With respect to his interpersonal and social environment, he stated:

“[The applicant’s] interpersonal style seems best [characterised] as one of autonomy and balance. With both interpersonal scales scoring in the average range, his assertiveness, friendliness, and concern for others is typical for that of normal adults.”

75. The psychologist’s diagnosis of the applicant’s current mental state was as follows:

“The presentation is consistent with a diagnosis of Major Depressive Disorder, Generalized Anxiety Disorder, Alcohol Dependence and Psychoactive Substance Dependence as classified by the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-V). These disorders cause impairment in cognitive, emotional and behavioural domains.”

76. As to the applicant’s mental state at the time of the commission of the offences, the psychologist stated:

“It is my opinion that [the applicant] is (and was at the time of the alleged commission of the offence to which these proceedings relate):

cognitively impaired,

suffering from a mental illness, and

suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person for the purposes of Chapter 3 of the Mental Health Act 2007 (NSW).”

The applicant’s evidence

77. The applicant gave a brief outline of his background, confirming that he was born and raised in Sydney and had various jobs after leaving school, including factory and farm work, and in the building industry.

78. With respect to the issue of his remorse and acceptance of responsibility, the following exchange occurred:

“[Counsel for the applicant]: And what do you say to the complainants or the victims that are now on the screen?

[Applicant]: I’d like to say I’m very sorry, I didn’t realise … the devastation I was causing. I’ve got no excuses for my behaviour. I was under the influence of drugs and alcohol most of the time. I don’t want to use that for an excuse, I accept full responsibility for what I have done, and I’d like to say I’m very, very sorry. I never realised the damage I was causing.

HIS HONOUR: Really? It didn’t occur to you that treating young children the way you did would have a life-long effect upon them?

[Applicant]: I - like I said, your Honour, I was in a very dark place and was under the influence of drugs and alcohol.

HIS HONOUR: Well the drugs you refer to, was that marijuana?

[Applicant]: Speed, heroin, marijuana, pills.

HIS HONOUR: Anyway you say that they weren’t an excuse for what you did, is that right?

[Applicant]: No, yes that’s right.

HIS HONOUR: And you accept full responsibility?

[Applicant]: I do accept full responsibility—

HIS HONOUR: And the drugs and alcohol … had nothing to do with your offending?

[Applicant]: No, I don’t want to use any excuses for what I’ve done.”

79. The applicant essentially confirmed his drug and alcohol history that he had provided to the psychologist, stating that he commenced using cannabis at age 13, “LSD, heroin, speed” at age 17, and that he had been an alcoholic “most of [his] life” until his incarceration. As to his ability to perform the duties required in his employment despite his drug and alcohol use, the following exchange occurred:

“HIS HONOUR: So your performance of your occupation was not affected by drugs and alcohol?

[Applicant]: No, well I was so used to taking them I was just functioning, it became the normality.

HIS HONOUR: So the drugs and alcohol were normal for you and didn’t affect your decision-making, is that correct?

[Applicant]: It did but it didn’t.

HIS HONOUR: Well either it did or it didn’t, which is it?

[Applicant]: Yes, it didn’t, your Honour.

HIS HONOUR: It did not. So the drugs and alcohol you referred to did not affect your decision-making. …”

80. As to whether he was using drugs at the times of his offending, the applicant stated:

“… I was always using drugs and I was heavily – I drank a lot of alcohol. I was definitely affected by them but I don’t want to use this as an excuse.”

81. The applicant was cross-examined on the psychologist’s statement in his report, extracted at [68] above, that instead of confining his treatment of his depression and anxiety to the mediation prescribed to him, he had also self-medicated by injecting prohibited drugs:

“[Crown]: It’s said, this is you, ‘He was medicated with Serepax and Valium by doctors but also self-medicated with intravenous methadone and occasionally heroin.’?

[Applicant]: No, no, I was talking earlier. I stopped using heroin a number of years ago. then I was diagnosed with depression and anxiety and was put onto anxiety tablets and they were making me worse so I stopped taking them. I was getting more depressed and more depressed on the tablets so that was only a few years back and they weren’t doing me any good.”

82. And later:

“HIS HONOUR: … you said a moment ago that you stopped using heroin years ago, how long ago did you stop using heroin?

[Applicant]: Probably 15 years ago, more, maybe a bit longer. …

…

HIS HONOUR: And that you then as a result of stopping the use of heroin you became depressed, is that right?

[Applicant]: No, it was a number of years later I started with depression, I started finding myself depressed and having anxiety attacks when in groups of people. I sought out help with my local GP which sent me to a psychologist but. Yeah, that’s when they put me on the antidepressants but they made it worse so I stopped taking them. But in the whole time like I say I’ve consistently used speed and alcohol ...

HIS HONOUR: So prior to going into prison when did you last use speed?

[Applicant]: Well speed I’d settled down on it ‘cause I’ve started getting into my work, like started to realise that I had to put my head down and arse up and start working. I was having a lot of troubles at work, I suppose I was losing my job, I weren’t performing proper, so I slowed right down on it you know but alcohol was still a problem.

HIS HONOUR: But you were still able to work notwithstanding the alcohol consumption, is that right?

[Applicant]: Yes … There was numerous complaints from my workmates about the amounts I was drinking and that on site and what not. I was drinking a lot.”

83. With respect to his experience in gaol, the applicant stated that he had been held in protective custody since the date of his arrest on 17 May 2018, during which time he had been held on remand at Silverwater and Parklea Correctional Centres. He described his experience of incarceration as follows:

“I’m … living in danger every day … I see a lot of violence in here on a daily basis. … I don’t sleep at night. I’m awake most nights. I’m on blood pressure and anxiety medication. … Because I’m in protection it’s very difficult to move us around the prison in a safe environment.

…

… my anxiety and depression like on the outside I was dealing with it with the alcohol, the speed was definitely taking the anti-depression away and then I come in here and like because of my surroundings, you know all the violence and what not in here, it’s a very depressing place and it’s brought the anxiety back on again … .”

84. The applicant said that the response by Corrective Services NSW to the Covid-19 pandemic had resulted in “added extra segregation”.

85. With apparent reference to the courses outlined by the chaplain, the applicant stated that he had completed “self-awareness courses” on remand and, as a result, had “come to an awareness that I done so much wrong and damage”. He said he completed all the courses that were available to him as a remand prisoner, which did not include drug and alcohol courses, and that he intended to do others as they became available to him as a sentenced prisoner.

Remarks on sentence

86. The sentencing judge identified the 13 offences, the maximum penalties and the standard non-parole period that applied to count 13. His Honour listed the 10 additional offences on the Form 1 certificates and stated that he had regard to them in accordance with the approach approved in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (NSW) (2002) 56 NSWLR 146; [2002] NSWCCA 518; namely, by giving greater weight to the need for personal deterrence and the community’s entitlement to retribution being extracted for serious offences.

87. The procedural history was outlined and the agreed facts recounted.

Objective seriousness

88. The sentencing judge summarised the Crown’s submissions as to where each indicted offence should be fixed in the range of objective seriousness; the need for each sentence to reflect considerations of general and specific deterrence; and for an application of the principle of totality.

89. The sentencing judge noted that counsel for the applicant had taken a global approach to the issue of fixing the appropriate levels of objective seriousness of each offence, by submitting that they fell “either at the mid-range or the low range”.

90. The sentencing judge considered the objective seriousness of each of the 13 counts, setting out the factors that were relevant to each determination. His Honour’s conclusion in relation to each count is extracted in the table above at [10].

91. As part of that exercise, for each offence the sentencing judge noted where the victim’s age fell in the age range that was applicable to the offence and the considerable disparity in the ages of the victim and the applicant.

Aggravating considerations

Some offences committed in the victims’ homes

92. His Honour noted that the offending in counts 1, 2, 3, 4, 6 and 7 took place in each victim’s home, where they were entitled to have been “safe and secure”: CSP Act, s 21A(2)(eb). The offending against AB in counts 5, 8, 9, 10, 11 and 12 took place in the applicant’s home which was “a place where his daughter was entitled to feel safe and secure”.

An abuse of a position of trust or authority

93. The sentencing judge found that the applicant’s offending in counts 1, 2, 3, 4, 5 and 7 was aggravated by it being an abuse of his position of authority as a “fatherly figure” of each of the victims: CSP Act, s 21A(2)(k). His Honour did not make that finding in relation to counts 6, 8, 9, 10, 11, 12 and 13, since the applicant’s position of authority was an element of those offences.

94. The sentencing judge noted the distinction between the concepts of an abuse of a position of trust and of a position of authority, although they both come within s 21A(2)(k) of the CSP Act and involve similar considerations. His Honour cited authority to the effect that a sentencing judge may have regard to the former concept as an aggravating factor even if the latter concept is an element of the offence, noting, however, that caution is required if they both arise from the same factual matrix: MRW v R [2011] NSWCCA 260 per Bathurst CJ at [77]-[78]; WM v R [2020] NSWCCA 96 per Bellew J (Johnson and Adamson JJ agreeing) at [40].

95. On this basis, the sentencing judge found that the breach of trust by the applicant significantly aggravated the offending in respect of all three victims: CSP Act, s 21A(2)(k). His Honour stated, at [172]:

“Whilst I acknowledge the fact that the abuse of authority and abuse of trust involve similar considerations arising out of the same factual circumstances, I find that the breach of trust in the circumstances of this offending in relation to all 3 complainants is such as to significantly aggravate the offending.”

96. His Honour noted that this abuse of trust was tempered in respect of counts 6, 8, 9, 10, 11, 12 and 13 by the fact that the applicant’s position of authority was an element of the offence charged.

97. In spite of his Honour’s express finding of a breach of trust by the applicant in respect of all three victims, in relation to the objective seriousness of count 13, which is the only count concerning XY, his Honour did not specify a breach of trust as a factor, whereas he did so for each of the other 12 counts. In view of his Honour’s express finding in the remarks on sentence extracted at [95] above in relation to all three victims, and in the absence of any explanation, this would appear to be an oversight.

The victim impact statements

98. His Honour summarised the three victim impact statements and concluded that the emotional harm caused to the three victims was substantial and constituted an aggravating factor: CSP Act, s 21A(2)(g). His Honour had regard to them as evidence of the trauma of sexual abuse on children as understood at the time of sentencing, pursuant to s 25AA(3) of the CSP Act.

Potentially aggravating considerations

Multiple victims

99. The sentencing judge did not consider the fact that there were multiple victims to be an aggravating factor, since the sentence imposed would reflect the offending conduct against all three victims: CSP Act, s 21A(2)(m).

The applicant’s criminal record

100. The sentencing judge found that, although the applicant’s criminal history is “relatively extensive”, it did not constitute an aggravating factor in the absence of like offences, although it disentitled him to “any leniency which may otherwise be afforded to a person of good character”: CSP Act, s 21A(2)(d).

Subjective considerations

101. The sentencing judge summarised the applicant’s evidence as to his family and work history, the physical and medical difficulties he was encountering in prison and his remorse, with a proviso as to the latter, at [93]:

“Generally, I accepted the evidence of [the applicant]. He does, however, have a distinct lack of insight. Whilst he now regrets his offending being in custody, he had the opportunity to admit his offending (at least concerning [CD]) on at least 2 occasions, but chose to lie and continue offending against [AB] and [XY].”

The applicant’s abuse of prohibited drugs and alcohol

102. The sentencing judge accepted the applicant’s evidence to the effect that he regularly abused drugs and alcohol from the age of 13. His Honour reproduced the passage extracted above at [79] and noted the applicant’s evidence that he “never realised the damage (he) was causing”, that he was in a “dark place” due to his drug and alcohol use and that “he did not want to use drug use as an excuse for the offending, and wished to accept full responsibility for his actions”.

103. The sentencing judge rejected a submission made on behalf of the applicant that leniency should be afforded on the basis that the applicant was affected by drugs at the time of offending, finding that the applicant’s long-term substance abuse was “of little relevance, given that [the applicant] admitted that his drug-use has had little impact on his decision-making” and that, in any event, self-induced intoxication was not to be taken into account as a mitigating factor. His Honour referred to s 21A(5AA) of the CSP Act, which provided as follows:

“21A   Aggravating, mitigating and other factors in sentencing

…

(5AA)   Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.”

The applicant’s mental health

104. The sentencing judge referred to the applicant’s evidence as to his mental health as follows:

“152   Whilst in his evidence [the applicant] referred to experiencing anxiety and depression in the past, the evidence was not sufficiently clear to permit a link to be drawn, even inferentially, between the offending and any mental illness. In fact, [the applicant] stated that he does have anxiety and depression ‘due to my surroundings’ … that is, being held in custody.” (emphasis in original)

105. Referring to the psychologist’s diagnoses, the sentencing judge remarked:

“100   Generally, I found the report of [the psychologist] unpersuasive. He diagnosed a Major Depressive Disorder, Generalised Anxiety Disorder, Alcohol Dependence and Psycho-Active Substance Dependence as classified by DSM-5. In making those diagnoses, [the psychologist] failed to refer to any of the criteria for the diagnoses of those conditions. Again, without explanation, [the psychologist] stated that those disorders ‘cause impairment in cognitive, emotional and behavioural domains’.

101   Most contentiously, under the heading ‘Summary and Recommendations’, [the psychologist] expressed the opinion that [the applicant] was suffering from those conditions at the time of the commission of the offences. Given that the assessment by [the psychologist] took place in March 2020 and that [the applicant] failed to provide any complaint contemporaneous with the offending, there is no basis for the opinion expressed by [the psychologist].

102   Counsel for [the applicant] was told that the Court intended to give little or no weight to the opinion of [the psychologist]. He accepted the obvious limitations in the opinion expressed and did not press a submission that [the applicant’s] mental health in any way contributed to the commission of the offences.” (emphasis in original)

106. And later:

“139   Counsel for [the applicant] also referred to mental illness, based upon the opinion expressed by [the psychologist].

140   Counsel for [the applicant] was challenged as to the expertise of the psychologist to provide psychiatric diagnoses, and also as to the relevance of diagnoses made in 2020 to his client’s conduct at much earlier times. It was conceded that there was no evidence as to [the applicant’s] psychological condition as at the time of the offending. Due to these deficiencies in the opinion of [the psychologist], counsel for [the applicant] was informed that it was my intention to give little or no weight to his report or, more specifically, to his opinion. That was not disputed by counsel for [the applicant] …”

107. His Honour concluded:

“153   This is not a case where the evidence established that [the applicant] suffered from a mental condition which could have the effect of reducing his moral culpability and the need for a sentence to address matters such as general deterrence, retribution and denunciation. It is certainly not a case such as that considered in DPP (Cth) v De La Rosa [2010] 79 NSWLR 1 at 177, where the mental condition contributed to the commission of the offence in a material way.

154   Even taking [the psychologist’s] opinion at its highest, it will permit a finding that [the applicant] suffered from the conditions diagnosed as at March 2020 which, according to [the applicant], he attributed to his surroundings.

155   I decline to find that [the applicant] suffered from any mental illness at the time of the offending which in any way contributed to it.”

108. I note that the meaning of the sentence which comprises par [154] of the remarks is unclear; whether the word “even” was unintended or alternatively, whether the word “not” is missing from the phrase “it will permit”, so that it should be “it will not permit”. Having regard to the last part of the sentence, I assume that the sentencing judge intended to convey a finding that he also disregarded the psychologist’s diagnosis of the applicant’s current mental state, extracted at [75] above. If this assumption is incorrect, then it nevertheless follows from the alternative meaning that very little weight was given to the diagnosis of the applicant’s current mental state.

Protective custody

109. The sentencing judge rejected a submission that hardship was occasioned to the applicant by the fact of him being in protective custody and that he was likely to remain there for the duration of his imprisonment, and by the impact of the Covid-19 pandemic on prison conditions, explaining:

“146   … Protective custody is available to child sex offenders in order to provide them with safety and protection against being assaulted or worse. This child sex offender is in no different position to any other child sex offender when it comes to those arrangements and facilities. As for the COVID-19 submission, no evidence was adduced which would permit a positive finding about hardship to this offender.”

Evidence of remorse

110. The sentencing judge was satisfied that the applicant had accepted responsibility for the offences by reason of his pleas of guilty and his evidence that he did not “want to use any excuses for what [he has] done”, in spite of evidence of his drug and alcohol abuse and his mental health issues. The sentencing judge accepted that the applicant had demonstrated genuine remorse, thus satisfying s 21A(3)(i) of the CSP Act.

Prospects of rehabilitation

111. The sentencing judge acknowledged the fact that the applicant had undertaken a self-awareness course and that he desired to undertake further courses to “try and understand … how I could’ve caused so much damage to the people I love” but declined to make a positive finding pursuant to s 21A(3)(g) of the CSP Act that the applicant was unlikely to re-offend. His Honour instead found the applicant’s prospects of rehabilitation (s 21A(3)(h) of the CSP Act) to be “very much untested” and therefore “guarded”.

Special circumstances

112. The sentencing judge did not consider special circumstances to be warranted (s 44(2) of the CSP Act) and imposed the statutory non-parole period, stating that, in any event, it would meet “any need for rehabilitation”.

Delay

113. Counsel for the applicant at the sentence hearing had submitted that the eight-year delay between the cessation of the offending in 2010 and the applicant’s arrest was a mitigating factor because, had he been charged earlier, he would have received a more lenient sentence, since s 25AA of the CSP Act did not commence until 31 August 2018. Section 25AA provided that:

“A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.”

Further, counsel submitted, the ability for the applicant to rehabilitate successfully had been reduced by reason of the delay.

114. The sentencing judge noted that the applicant was “not entirely blameless” in the delay occurring, given that he denied the offences in 1995 when confronted by Partner 2 in response to CD’s letter, and again in 1997, when police commenced an investigation against him in response to allegations made by CD to her family friend.

115. His Honour concluded that the delay did not entitle the applicant to any degree of leniency, given the following factors: the delay was for a period of eight years which is considerably less than the period of offending; the submission that the applicant would have received a lesser sentence if he was sentenced in about 2010 involved a “high degree of speculation”; there was no evidence that the applicant’s prospects of rehabilitation had been impacted by the delay, nor was there evidence that he had otherwise been prejudiced by the delay; there was no evidence to suggest that the delay had left the applicant in a state of “uncertain suspense”; the delay was not caused by a failure on the part of the authorities to investigate the matter and charge the applicant; and the applicant had enjoyed being a liberty during the period of the delay.

Totality

116. The sentencing judge acknowledged a submission that the length of the sentence of imprisonment should not preclude the applicant from being released at a time when “he can still make a worthwhile contribution to his life” and responded that a proper application of the principle of totality would “ensure that this sentiment is reflected in the sentence”. Similarly, his Honour accepted a submission that the applicant’s age was “a relevant consideration in imposing a lengthy sentence”, noting that he was mindful of the applicant’s age of 54 and that each additional year in custody “represents a significant portion of his remaining life expectancy”.

117. The sentencing judge drew on the remarks of Street CJ in R v Holder (1983) 3 NSWLR 245 at [260] as to how the principle of totality should be applied.

Pleas of guilty

118. Pursuant to s 25D(2)(c) of the CSP Act, the sentencing judge applied the mandatory 5 per cent discount to the sentence for the utilitarian value of the applicant’s pleas of guilty, which he also found to be a mitigating factor pursuant to s 21A(3)(k) of the CSP Act.

119. The sentencing judge rejected a submission made on behalf of the applicant that it was open to the Court to fix a greater discount than that stipulated by s 25D(2)(c) and that he had facilitated the administration of justice in a way that entitled him to a reduction pursuant to s 22A of the CSP Act, finding that the section was not relevantly engaged because it was intended to apply to an accused making pre-trial disclosures.

Relevant principles of sentencing

120. The sentencing judge recited the purposes of sentencing pursuant to s 3A of the CSP Act and acknowledged that the applicant was to be sentenced in accordance with current sentencing patterns and practices, rather than those which applied at the time of the offending conduct, pursuant to s 25AA of the CSP Act.

The sentence

121. As noted, the sentencing judge imposed an aggregate sentence of 30 years imprisonment with a non-parole period of 22 years and 6 months, commencing on 17 May 2018 and expiring on 16 May 2048, meaning that the applicant will be eligible for release to parole on 16 November 2040. Indicative sentences were expressed for each of the 13 counts, which are reproduced in the table at [10] above.

The ground of appeal

122. The applicant’s ground of appeal is as follows:

“That in all the circumstances the sentence imposed upon the Applicant as to both the head sentence, and non-parole period, was manifestly excessive.”

Law and legal principles

123. The principles that are relevant to a determination of whether a sentence is manifestly excessive are well established and were summarised by this Court in Ewan v R [2019] NSWCCA 17 at [37]:

“The principles concerning whether a sentence is manifestly excessive are well established. Those that are relevant in the present case may be summarised as follows:

(1)   For a sentence to be ‘manifestly excessive’, it must be unreasonable or plainly unjust’: Dinsdale v The Queen (2000) 202 CLR 321 at [6], [22]; [2000] HCA 54; Baladjam v R [2018] NSWCCA 304 at [259] per Bathurst CJ (Hoeben CJ at CL and Fagan J agreeing);

(2)   It is not sufficient that an appellate court may have a different view from the sentencing judge as to the appropriate sentence: Lowndes v The Queen (1999) 195 CLR 665 at [15]; [1999] HCA 29; Baladjam at [259];

(3)   Intervention is warranted only when the difference in view is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Dinsdale at [6]; Wong v The Queen (2001) 207 CLR 584 at [58]; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [59]; [2010] HCA 45; Baladjam at [260];

(4)   In other words, it must be shown that the sentence is one that was simply not open to the judge to impose in the exercise of the sentencing discretion: El-Sayed v R [2018] NSWCCA 250 at [41] per R A Hulme J (Basten JA and Hamill J agreeing).”

124. The reference in the first stated principle to Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 in the extract quoted above is to the following paragraph in the joint judgment of Gleeson CJ and Hayne J, at [6]:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

Submissions of the parties

The applicant’s submissions

125. In written submissions, the applicant submitted that:

“… the sentence demonstrates error in the [Dinsdale] sense namely, that the sentence of 30 years with a non-parole period of 22 years and 6 months upon an Applicant of 54 years of age who had pleaded guilty, had long term drug and alcohol dependence and was likely to be in protective custody for the duration of his sentence was, in the circumstances, plainly unjust.”

126. In oral submissions, counsel for the applicant accepted that there was no apparent error in the sentencing judge’s reasoning or findings in the remarks on sentence, but that the sentence was “just too severe in the circumstances”.

127. In support of that proposition, reference was made to Cabezuela v R [2020] NSWCCA 107, which was an appeal against conviction and an application for leave to appeal against an aggregate sentence that had been imposed for 27 counts of historical child sexual assault, of which the applicant was convicted at trial. The aggregate sentence imposed was a term of imprisonment for 28 years with an aggregate non-parole period of 18 years. There were four victims, being four sisters. Walton J, with whom Hoeben CJ at CL and Harrison J agreed, referred to the background to the offences as follows:

“3   The offences were alleged to have occurred over 15 years, between 1966 and 1981, at the complainants’ home in the Illawarra Region, where they lived with their parents who had migrated from Spain in 1962. The complainants’ ages ranged from 3 to 13 years of age at the time of the offences and the appellant was aged 27 to 42 years of age during the offending. The offending was said to have begun when the appellant, the complainants’ maternal uncle, joined the household.

…

6   The charges consisted of 21 indecent assault counts, three counts of carnal knowledge of a girl under 10, one count of rape and two counts of buggery.”

128. At the time of sentence, the applicant was aged 79. He did not otherwise have a criminal record. He had serious health issues, which were described by Walton J, at [94]-[95], as including chronic heart failure, chronic renal failure, type II diabetes and dementia.

129. There were two grounds to the application for leave to appeal the severity of sentence, although both contended that the aggregate sentence was manifestly excessive. The first was that it was manifestly excessive “per se” and the second was that it was manifestly excessive in light of the impact of the Covid-19 pandemic and the applicant’s age and poor health.

130. The application failed, leave being refused on the first ground and leave being granted and the appeal dismissed on the second.

131. Counsel for the applicant in the instant case submitted that although comparative sentences must be considered with caution, when regard is had to the similarities and dissimilarities with Cabezuela, the inevitable conclusion is that the sentence handed down to the applicant was manifestly excessive.

The respondent’s submissions

132. The respondent replied to the applicant’s written submissions as follows. The quantum of discount of 5 per cent for the late plea was prescribed by s 25D(2)(c) of the CSP Act, which had been applied; there was no scope for a greater discount. The sentencing judge found, in the applicant’s favour, that he had accepted responsibility and demonstrated genuine remorse for the offences.

133. As to the applicant’s long-term drug and alcohol misuse, he gave evidence in the sentence hearing that he accepted there was “no connection” between his misuse of drugs and alcohol and his offending. The sentencing judge had noted s 21A(5AA) of the CSP Act so that, in any event, there was no relevant leniency or mitigation to be derived from the applicant’s drug and alcohol issues.

134. The sentencing judge had acknowledged that the applicant was being held in protective custody. The respondent submitted that:

“… there was nothing to show a particular hardship to the applicant in that regard. This Court has made clear that it is not automatically assumed that protective custody occasions hardship entitling an offender to some mitigation.” (citations omitted)

135. The respondent concluded that, when considered individually or together, the three matters identified by the applicant do not demonstrate that the sentence was “plainly unjust or manifestly excessive” and if leave to appeal is granted, the appeal should be dismissed.

136. At the hearing, the respondent acknowledged that it was open to the Court to conclude that the sentence was “stern” but maintained that it was not manifestly excessive. In response to the applicant’s reliance upon Cabezuela, the respondent submitted orally that there was little utility in relying upon a single sentence comparative, particularly concerning historical sexual offending with multiple victims and offences. The respondent referred to differences between the two cases concerning the respective sentencing judges’ findings. Whereas in Cabezuela the impact of the offending on any victim had not been found to constitute a separate aggravating feature, the sentencing judge in the instant case had made a specific finding to that effect. The offender in Cabezuela had “a significant subjective case” which was comparatively more substantial than that of the applicant, for example, having regard to their respective ages and their states of health. Further, the breach of trust and authority in the relationship of the applicant to the victims that was involved in the offences where a breach of authority was not an element was more onerous, since, it was submitted, the abuse of responsibility of a parent, step-parent and step-grandfather is more egregious than that of an uncle to his nieces.

Consideration

137. In my view, the sentence imposed in Cabezuela is of little assistance to the applicant’s case when allowance is made for the significant features that distinguish it from those that applied to the applicant’s sentence, such as their respective ages and states of physical health.

138. Care must be taken in considering comparative cases involving offences against s 66A of the Crimes Act, since the maximum penalty has been increased on three occasions since the time of the offences of which the applicant was convicted, from 2003 to 25 years and with the introduction of a standard non-parole period of 15 years; from January 2009 to life imprisonment if there were “circumstances of aggravation”, which included the child being under the authority of the offender; and from June 2015 to life imprisonment for the offence simpliciter.

139. I understand the applicant’s submission to be, in effect, that the length of the aggregate sentence was inconsistent with appropriate weight having been given to the three factors identified in his submissions, being the applicant’s pleas of guilty, his long-term drug and alcohol dependence and the likelihood of him being in protective custody for the duration of his sentence.

140. The quantum of the discount for the utilitarian benefit of the applicant’s pleas of guilty was mandated by ss 25D(1) and (2)(c) of the CSP Act and expressly taken into account by the sentencing judge when determining the indicative sentence for each offence, as his Honour was obliged to do by s 53A(2)(b) of the CSP Act: see for example Khawaja v R [2014] NSWCCA 80 at [17]. No complaint is made by the applicant as to the indicative sentences. Although an indicative sentence cannot be the subject of challenge, it may reveal error in the aggregate sentence imposed: PD v R [2012] NSWCCA 242 at [44].

141. A plea of guilty is also relevant in the sentencing exercise to the extent to which it manifests remorse: Georgopolous v R [2010] NSWCCA 246 at [10]. The sentencing judge gave full weight to the applicant’s remorse, primarily on the basis of his evidence to that effect. The sentencing judge was particularly impressed by the applicant’s determination to not avoid responsibility for his offending behaviour by relying on his history of drug and alcohol abuse.

142. Counsel for the applicant on the application accepted there was no credible evidence of a causal connection between his abuse of drugs and alcohol and the commission of the offences. In view of that acceptance and s 21A(5AA) of the CSP Act, it is not apparent how it could be reasoned that the aggregate sentence does not adequately reflect the sentencing judge’s finding that the applicant had regularly abused drugs and alcohol since he was aged 13.

137. The sentencing judge found that the applicant’s circumstances of imprisonment were no different than for other sex offenders and thus did not warrant mitigation. I note recent observations by Bathurst CJ (Garling and Wright JJ agreeing) in Zahab v R [2021] NSWCCA 7 as to the relevance of such evidence on sentence:

“47   It is well established that the fact that an offender will be subject to onerous conditions of custody is a factor which can be taken into account as a mitigating factor in sentencing: see C v R; Durocher-Yvon at [20]; Totten at [43]-[44]. …

48   Further, in my opinion the relevant comparison is between the condition in which the applicant is to serve his sentence compared to that of the general prison population, not between persons convicted of similar offences. When offenders of a particular class are housed in similarly onerous conditions the comparison, with respect, would be meaningless. In a concurring judgment in Khalid v R, Harrison J at [101] emphasised that ‘[i]t is well understood that offenders receive sentences of imprisonment as punishment: they are not imprisoned for punishment’.

49   However, a number of cases have emphasised the need for evidence when the matter is raised. Thus, in C v R, Hoeben JA, with whom the other members of the Court agreed, emphasised the need for such evidence in the following passages at [41]-[42]:

‘[41]   The better view, in my opinion, is that an offender in the position of the applicant during a sentence hearing, if he or she wishes to gain some benefit in the sentencing process because of the conditions under which the sentence is likely to be served, should adduce evidence as to those conditions. If the Crown disputes that evidence, it can call its own evidence, otherwise the evidence of the offender should be given appropriate weight.

[42]   In this case the only evidence adduced was that the applicant was serving his sentence under some form of protection. There was no evidence as to the nature and extent of restrictions, if any, which were imposed. In those circumstances, the fact that he was serving his sentence under a form of protection should have been taken into account by her Honour but only in a general sense, i.e. that normally some additional restrictions and constraints are imposed upon a person serving a sentence in such a way. If, however, an applicant seeks to have the conditions under which he or she is serving a sentence taken into account in such a way as to have a significant effect on the sentence to be imposed, then some evidence of those conditions needs to be adduced.’

See also R v Scott [2003] NSWCCA 28 at [34] per Bell J.”

144. In R v Scott [2003] NSWCCA 28 Bell J said:

“26   This Court has held that the circumstance that a sentence of imprisonment is likely to be served in conditions of protection is a matter that is relevant both to a consideration of the length of the term and to the question of whether special circumstances exist to justify a departure from the statutory proportion between the sentence and the non-parole period; R v Burchell [(1987)] 34 A Crim R 148 at 151; R v Boon (unreported), NSWCCA 17 November 1983; AB v The Queen (1999) 198 CLR 111; R v Wahabzadah [2001] NSWCCA 253. In Burchell Hunt J described as a well-known fact that child molesters are subjected to physical assaults by the inmates of regular gaols and that they are usually obliged to serve their sentences under heavy protective guard and often in isolation.

…

34   It is appropriate for a sentencing court to take into account the circumstance that a sexual offender may spend his custody in conditions subject to some form of ‘protection’ status. Evidence as to the likely conditions of custody is important if the Court is to make an informed assessment of the extent to which the offender’s custody will be more onerous than that of prisoners housed in the general prison population. The concerns of which Hunt J spoke in Burchell would seem to be significantly lessened for sexual offenders who are placed in special facilities such as the [Malabar Special Programs Centre, Long Bay Complex]. … ”

145. Similar observations as to the importance of evidence of hardship occasioned by protective custody were made in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [179].

146. As noted, some evidence was adduced from the applicant as to his conditions of incarceration, which is extracted at [83] above, to the effect that he witnessed violence on a daily basis and referred to the difficulty in being moved safely around the prison as a prisoner on protection, the inference being that he was conscious that he would be attacked if he was not securely protected. The extracted passage evidenced an interplay between his experience of the conditions of incarceration and his pre-existing mental state of anxiety and depression.

147. The sentencing judge’s reasoning for rejecting the submission that protective custody entitled the applicant to mitigation of his sentence, which was that he was in no worse position than other child sex offenders being held on protection (see [109] above), was a comparison of the type that was observed by Bathurst CJ at [48] in Zahab as being inappropriate. The applicant was a target because he was on protection, and the fact that he was in no better or worse a situation than fellow sex offenders on protection was beside the point.

148. Although the applicant’s evidence was not detailed as to the restrictions he experienced by being a prisoner on protection, he was at least entitled to it being taken into account in a general sense, as observed by Hoeben JA in C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81 at [42] and noted with approval by Bathurst CJ in Zahab extracted at [143] above.

Determination and re-sentence

149. I conclude that, in light of the sentencing judge’s relevant findings and appropriate weight being attributed to the applicant’s continuing classification as a prisoner in protective custody, the aggregate sentence is manifestly excessive.

150. Accordingly, I would grant the applicant leave to appeal and uphold the appeal. The applicant is to be re-sentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

151. The sentencing judge made findings as to where in the range of objective seriousness each of the offences lay. Although it was unnecessary for his Honour to make a scaled assessment of objective seriousness, except in respect of count 13 because it had a standard non-parole period (Sivell v R [2009] NSWCCA 286 at [32]), it is helpful that his Honour has done so. I have read and considered all the evidence that was before the sentencing judge and I make the same findings in respect of each offence. In relation to count 13, I take into account the applicant’s abuse of the trust that was reposed in him.

152. I make the same findings as the sentencing judge in respect of the applicant’s abuse of his position of trust or authority. In relation to the victim impact statements, I similarly conclude that the harm occasioned to the three victims by the applicant’s offences was substantial and constituted an aggravating factor. I add my own expression of sympathy to them, for the suffering that they have endured and continue to experience.

153. I make the same findings as the sentencing judge in respect of the relevance of the applicant’s criminal record not being an aggravating factor but denying him leniency. I add that, even though s 21A(5A) of the CSP Act was not submitted to be applicable, good character is of little relevance in cases of repeat offending of child sexual assault over an extended period: R v Van Ryn [2016] NSWCCA 1 at [286].

154. In relation to the issue of the applicant’s abuse of drugs and alcohol throughout the period of offending, I would not find that the applicant’s denial of it being relevant as determinative of that issue. However, I infer from the fact that there was a period of approximately 20 years between his first and last offence of child sexual assault that he had multiple opportunities over that period to reflect on his offending behaviour. Assuming he was under the influence of drugs and/or alcohol for some or all of the offences, the period of offending deprives that assumption of any utility in explaining why he continued to offend. I note, as well, s 21A(5AA) of the CSP Act.

155. I find that the applicant is genuinely remorseful and take it into account as a mitigatory factor pursuant to s 21A(3)(i).

156. I take into account the fact that the applicant had been held in protective custody at Silverwater and Parklea Correctional Centres for the approximate period of two years from the time of his arrest until the sentence hearing, and that he is likely to remain in protective custody for the duration of his imprisonment. There is little evidence as to the nature of the constraints of protective custody on the applicant, so I take it into account in a general sense. I also take into account, in a general sense, the restrictive consequences to the applicant of the management of Covid-19 in the prisons in which he has been accommodated.

157. I accept the psychologist’s diagnoses of the applicant suffering from a major depressive disorder and a generalised anxiety disorder and the evidence to the effect that he was first diagnosed with those conditions well before his arrest. I accept that they were enlivened and exacerbated by the applicant’s imprisonment, in particular, that as a prisoner on protection, his awareness that he is a continuing target for violence from prisoners in the general prison population, should they gain access to him.

158. I make the same determination as the sentencing judge of the indicative sentences, making an allowance of the 5 per cent discount for the late pleas of guilty. In relation to count 13, which had a standard non-parole period and therefore requires the sentencing court to identify an indicative non-parole period (s 54B(5) of the CSP Act), I make the same findings as the sentencing judge, namely, I fix the objective seriousness as below mid-range because of the duration of the offending and the extent of the physical contact between the applicant and the victim (XY) and nominate an indicative non-parole period of 1 year 3 months.

159. I reflect the factors of the applicant’s likely protective custody for the duration of his sentence and its exacerbation of his mental condition in a finding of special circumstances warranting a modest reduction of the ratio of the non-parole period to the balance of term, pursuant to s 44(2) of the CSP Act.

160. I would impose an aggregate sentence of 28 years imprisonment, commencing on 17 May 2018 and expiring on 16 May 2046. I would set a non-parole period of 20 years, so that the applicant would be eligible for release to parole on 16 May 2038.

161. I propose the following orders:

1. Leave to appeal granted;

2. Appeal allowed;

3. Quash the sentence imposed in the District Court on 25 June 2020;

4. In lieu thereof, the applicant is sentenced to 28 years imprisonment, commencing on 17 May 2018 and expiring on 16 May 2046, with a non-parole period of 20 years, expiring on 16 May 2038.

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Decision last updated: 26 November 2021