Brown (a pseudonym) v The King

[2025] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brown (a pseudonym) v R [2025] NSWCCA 124

Hearing dates:

14 April 2025

Date of orders:

13 August 2025

Decision date:

13 August 2025

Before:

Hamill J at [1]
Chen J at [2]
McNaughton J at [3]

Decision:

(1)   Extend time to file the notice of appeal.

(2)   Grant leave to appeal.

(3)   Allow the appeal.

(4)   The aggregate sentence passed in the District Court is confirmed. The sentence of 16 years imprisonment with a non-parole period of 11 years commences on 1 September 2023 and concludes on 31 August 2039, with the applicant eligible for release on parole on 1 September 2034.

Catchwords:

CRIME – appeals – appeal against sentence – denial of procedural fairness – finding of aggravating factor not raised at sentencing hearing – finding not inevitable – applicant deprived of the opportunity to make submissions – miscarriage of justice

SENTENCING – aggravating factor – substantial harm, injury, loss or damage – difference between significant and substantial harm – whether incorrect test applied

SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – aggravating factor – substantial harm, injury, loss or damage – victim impact statement as evidence of harm – substantial harm established – no lesser sentence warranted in law – adjustment of commencement date of sentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61M, 61O

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 30B, 53A

Cases Cited:

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72

Baroudi v R [2007] NSWCCA 48

Carl v R [2023] NSWCCA 190

Cherdchoochartri v R (2013) 277 FLR 126; [2013] NSWCCA 118

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074

Culbert v R [2021] NSWCCA 38

Da Silva v R [2024] NSWCCA 216

Dent v R [2025] NSWCCA 43

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Edmonds v R [2022] NSWCCA 103

Fuller v R [2024] NSWCCA 106

Houssenloge v R [2010] NSWCCA 9

HT v R (2019) 269 CLR 403; [2019] HCA 40

Le v R [2007] NSWCCA 330

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Muggleton v R (2015) 250 A Crim R 180; [2015] NSWCCA 62

O’Brien v R [2023] NSWCCA 41

Pantorno v R (1989) 166 CLR 466; [1989] HCA 18

Purdie v R [2019] NSWCCA 22

R v Packer [2023] NSWCCA 87

R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145

R v Tuala (2015) 248 A Crim R 502; [2015] NSWCCA 8

R v White [2018] NSWCCA 238

R v Youkhana [2004] NSWCCA 412

Smith v R [2024] NSWCCA 59

Stokes v R (2008) 185 A Crim R 74; [2008] NSWCCA 123

Weir v R [2011] NSWCCA 123

Texts Cited:

Nil

Category:

Principal judgment

Parties:

David Brown (a pseudonym) (Applicant)
Rex (Respondent)

Representation:

Counsel:
L Brasch (Applicant)
J Styles (Respondent)

Solicitors:
P Blake, KPT Defence Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/00218182

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name of the complainant or of any matter that could identify the complainant is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

01 December 2023

Before:

McHugh SC DCJ

File Number(s):

2021/00218182

HEADNOTE

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

Mr Brown (the applicant) (a pseudonym) sought leave to appeal against the sentence imposed upon him by McHugh DCJ (the sentencing judge) on 1 December 2023 in the District Court of New South Wales.

The sentencing judge imposed an aggregate sentence of 16 years imprisonment with a non-parole period of 11 years following a jury trial in which the applicant was convicted of 16 counts of offending involving sexual acts against the complainant. The offences occurred between January 1992 and November 2003, whilst the victim was between 6 and 18 years of age.

The issues arising on appeal were whether:

1. The sentencing judge erred by denying the applicant procedural fairness in finding that the offences were aggravated because the injury, emotional harm, loss or damage caused by the offence was substantial; and

2. The sentencing judge applied the incorrect test in finding that the offences were aggravated by the circumstance in (1); and

3. The aggregate sentence imposed was manifestly excessive; and

4. The sentencing judge erred in setting the commencement date for the sentence.

The Court per McNaughton J (Hamill J agreeing with additional remarks and Chen J agreeing) held, allowing the appeal:

As to Ground 1:

The manner in which the case was conducted before the sentencing judge resulted in the applicant being led to believe that the only aggravating factors which were to be considered by the sentencing judge were those identified by the Crown. The applicant was thus deprived of making submissions as to whether the aggravating factor above was made out. This resulted in a miscarriage of justice: per McNaughton J at [95]-[101] (Hamill J at [1] and Chen J at [2] agreeing).

Weir v R [2011] NSWCCA 123, considered; Stokes v R (2008) 185 A Crim R 74; [2008] NSWCCA 123, applied.

As to Ground 2:

At sentencing, the judge found “significant” emotional harm, rather than “substantial” emotional harm. For a court to find that the injury, emotional harm, loss or damage caused by the offence was substantial, it must be satisfied beyond reasonable doubt that the harm caused by the offence extended beyond what is ordinarily encompassed in offences of the kind in question. Due to the complexities and the absence of submissions on this aggravating factor, it cannot be assumed that the sentencing judge simply misspoke, and the ground of appeal is made out: per McNaughton J at [103]-[105] (Hamill J at [1] and Chen J at [2] agreeing).

R v Packer [2023] NSWCCA 87; R v Tuala [2015] NSWCCA 8; R v Youkhana [2004] NSWCCA 412, considered.

As to Ground 3:

The victim impact statement contained a detailed description of the extent of the harm suffered by the victim. The emotional harm set out in the victim impact statement can be characterised as substantial. No lesser indicative sentence, nor lesser aggregate sentence is warranted in law: per McNaughton J at [120]-[130] (Hamill J at [1] disagreeing as to the aggravating factor, but agreeing as to the aggregate sentence, and Chen J at [2] agreeing).

Culbert v R [2021] NSWCCA 38; Muggleton v R [2015] NSWCCA 62; (2015) 250 A Crim R 180; R v Packer [2023] NSWCCA 87; R v Tuala [2015] NSWCCA 8, considered.

As to Ground 4:

The respondent accepted that it was open to the Court to conclude that the sentencing judge failed to account for a period of four days pre-sentence custody served by the applicant. The start date of the applicant’s sentence is to be backdated to account for this period: per McNaughton J at [107] (Hamill J at [1] and Chen J at [2] agreeing).

JUDGMENT

1. HAMILL J: I have had the great advantage of reading the judgment of McNaughton J which was circulated in draft. I agree with the orders that her Honour proposes and with her Honour’s reasons, subject to the following observation which is not driven by any disagreement as to principle, but reflects a minor difference in the approach to the re-sentencing exercise. If it were necessary to re-sentence, I would have settled on shorter indicative sentences for some of the offences. However, the appeal is against the aggregate sentence and the total aggregate sentence I would have imposed is not less severe than the 16 years with a non-parole period of 11 years imposed in the District Court. This was an extraordinarily serious course of criminal conduct spanning more than a decade and involving the sinister manipulation of a child starting when she was aged six years and continuing into her adulthood. The impact upon the victim has been devastating and commensurate to the degree to which she was abused and manipulated by the applicant in both a family and a religious context. The breach of trust involved in the offences is extreme. In reaching the same conclusion as McNaughton J – that no lesser aggregate sentence is warranted in law – I did not take the unquestioned harm done to the victim as an aggravating circumstance under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). That is largely because the Prosecutor did not contend that the aggravating circumstance was established at first instance and the situation was, as McNaughton J explains, complex. However, putting aside the evidence of epilepsy for the reasons explained by McNaughton J at [125]-[126], in exercising the sentencing discretion afresh, I took the victim impact statement into account in reaching conclusions about the objective seriousness of the offending and applied the provision in s 25AA(3) of the Sentencing Act.

2. CHEN J: I agree with McNaughton J.

3. MCNAUGHTON J: The applicant, David Brown (a pseudonym), seeks leave to appeal his sentence. Following a jury trial in the District Court, the applicant was convicted of 16 counts of offending involving sexual acts against the complainant. He was sentenced to an aggregate sentence of 16 years’ imprisonment, with a non-parole period of 11 years. The offences were committed between January 1992 and November 2003, whilst the victim was between 6 and 18 years of age.

4. The jury returned its verdicts on 5 September 2023. The sentencing proceedings were conducted on 30 October 2023, and the sentencing judgment was delivered by McHugh SC DCJ (“the sentencing judge”) on 1 December 2023. The applicant will be eligible for parole on 4 September 2034.

5. The application for leave to appeal was filed out of time. Given the Crown did not oppose the Court extending the time for the filing of the application for leave to appeal, the limited delay, and the explanation provided by the applicant’s solicitor, I am of the view that an order extending time should be made.

6. The following table sets out each of the 16 charges for which the applicant was convicted. For each charge, a reference to the count on the indictment, the offence, a brief summary of the allegation, the maximum penalty, the sentencing Judge’s finding of objective seriousness and the indicative sentence are included.

Count	Offence provision and maximum penalty	Year, age and conduct	Indicative Sentence	Finding of objective seriousness
1	Commit act of indecency with victim under 10 years (Crimes Act 1900 (NSW), s 61O(2)); Maximum penalty 7 years	1992 – victim aged 6 Pull down pants and expose penis at applicant’s house	1 year	Significantly below mid-range
2	Indecent assault with victim under 10 years (Crimes Act, s 61M(2)); Maximum penalty 10 years	1994-1995 – victim aged 9 “Anointed” kiss on lips; in applicant’s vehicle at a park in the dark	8 months	Low range
3	Indecent assault with victim under 10 years (Crimes Act, s 61M(2)); Maximum penalty 10 years	1994-1995 – victim aged 9 Rub breast outside clothing (at time of Count 2)	1 year and 4 months	Significantly below mid-range
4	Aggravated indecent assault with victim under 16 years (Crimes Act, s 61M(1)); Maximum penalty 7 years	1997 – victim aged 11 Rub breast outside clothing; on front steps of victim’s home	1 year	Significantly below mid-range
5	Aggravated indecent assault with victim under 16 years (Crimes Act, s 61M(1)); Maximum penalty 7 years	1998 – victim aged 12 Place victim’s hand on applicant’s erect penis outside clothing and made her move it up and down; in applicant’s vehicle at park	1 year and 4 months	Significantly below mid-range
6	Aggravated indecent assault with victim under 16 years (Crimes Act, s 61M(1)); Maximum penalty 7 years	1998 – victim aged 12 Rub vagina outside clothing (at time of Count 5)	1 year and 6 months	Significantly below mid-range
7	Aggravated indecent assault with victim under 16 years (Crimes Act, s 61M(1)); Maximum penalty 7 years	1998 – victim aged 12 Place victim’s hand on applicant’s penis outside clothing and made her move it up and down and squeeze; in applicant’s vehicle near sports fields	1 year and 4 months	Significantly below mid-range
8	Aggravated indecent assault with victim under 16 years (Crimes Act, s 61M(1)); Maximum penalty 7 years	1998 – victim aged 12 Rub vagina outside clothing (at the time of Count 7)	1 year and 6 months	Significantly below mid-range
9	Aggravated indecent assault with victim under 16 years (Crimes Act, s 61M(1)); Maximum penalty 7 years	2000 – victim aged 14 Rub penis against vagina outside clothing (dry humping); At victim’s home when she had period pain	2 years and 6 months	Slightly below mid-range
10	Aggravated sexual assault with victim under authority of offender (Crimes Act, s 61J(1)); Maximum penalty 20 years	2001–2002 – victim aged 16 Fellatio; in applicant’s vehicle	8 years	At or slightly below mid-range
11	Aggravated indecency with victim 16 years or above and under authority (Crimes Act, s 61O(1A)); Maximum penalty 3 years	2001–2002 – victim aged 16 Applicant masturbates in front of victim (at the time of Count 10)	1 year and 4 months	Slightly below the mid-range
12	Aggravated indecent assault with victim under 16 years (Crimes Act, s 61M(1)); Maximum penalty 7 years	2001–2002 – victim aged 16 Place victim’s hand on penis, masturbate it, skin on skin; at victim’s home	3 years	Mid-range
13	Aggravated indecency with victim 16 years and above and under authority (Crimes Act, s 61O(1A)); Maximum penalty 3 years	2001–2002 – victim aged 16 Rub penis through lingerie (at the time of Counts 12 and 14)	1 year and 4 months	Slightly below the mid-range
14	Aggravated sexual assault with victim under authority of offender (Crimes Act, s 61J(1)); Maximum penalty 20 years	2001–2002 – victim aged 16 Digital penetration (at the time of Counts 12 and 13)	5 years	Significantly below the mid-range
15	Aggravated sexual assault with victim under authority of offender (Crimes Act, s 61J(1)); Maximum penalty 20 years	2002–2003 – victim aged 17 Penile-anal intercourse, ejaculation; at victim’s home	12 years	Slightly above mid-range
16	Aggravated indecency with victim 16 years or above and under authority (Crimes Act, s 61O(1A)); Maximum penalty 3 years[End]	2002–2003 – victim aged 17 Victim rubs applicant’s breasts outside clothing while applicant masturbates, ejaculates; at victim’s home	2 years	Slightly above mid-range

7. In addition to the above charges, several uncharged acts were put before the jury as context for the offending.

8. I note that all the offence provisions other than s 61J(1) (Counts 10, 14 and 15) of the Crimes Act are now repealed.

Grounds of appeal

9. The applicant relies on four grounds of appeal:

1. The sentencing judge erred by denying the applicant procedural fairness in finding that the offences were aggravated pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”).

2. The sentencing judge applied the incorrect test in finding that the offences were aggravated pursuant to s 21A(2)(g) of the Sentencing Act.

3. The aggregate sentence imposed was manifestly excessive.

4. The sentencing judge erred by setting the commencement date of the sentence as 5 September 2023.

10. The applicant has not challenged the sentencing judge’s findings of fact or the findings of objective seriousness.

The facts

11. First, it is useful to set out the facts underpinning the convictions. The following account is based on the findings of fact made by the sentencing judge which, as noted, are not challenged by the applicant.

The background of the offending

12. The applicant was born in August 1956 and was aged between 35 and 47 years old at the time of the offending. He is the maternal uncle of the victim, who was aged between 6 and 18 years old at that time. His sister is the victim’s biological mother.

13. Around 1991, when the victim was 5 to 6 years old, the victim’s parents separated, leaving the mother, Ms Williams (a pseudonym) to care for their three children. The applicant lived nearby with his wife and two children. The victim’s father cared for the children on some weeknights when Ms Williams had commitments, as well as every second weekend. Otherwise, the children lived with Ms Williams.

14. Around this time, the applicant’s level of contact with Ms Williams and the children increased as he assisted with the care of the three children including the victim. Ms Wiliams also sought emotional support and spiritual guidance from the applicant.

15. The applicant became a father figure to the three children and the family were reliant on him.

16. In the mid-to-late 1990s, the applicant began to hold himself out as a prophet of a religious order in Australia and said that he was a type of priest. He told the victim that he had an anointing from God, as a high prophet of God, and could cast out any spirit. The applicant told the victim that he wanted her to be his apprentice and that she would become a prophetess someday. He also told her that she had suffered a generational curse, but he could protect her. The victim believed this and continued to believe in it until some stage in 2018, when she was aged 32.

17. Throughout the victim’s childhood and into her adolescence the victim and her family were very involved in religion. There were bible studies at their home, the applicant’s home and at the houses of their friends and neighbours. These bible studies were often led by the applicant. There was discussion of evil spirits and the casting out of demons. The bible studies were attended by adults and children and on many occasions the victim saw what she believed to be the applicant physically casting out or fighting demons. This took the form of the applicant simulating physical combat with a demon. On occasions, the applicant wore a coloured robe and carried a staff or shepherd’s hook, which he also used to fight the demon. On other occasions, the applicant fought demons outside the context of bible studies. For example, from about 1998 onwards, Ms Williams began to experience nocturnal epileptic seizures. The children were instructed to call the applicant when this occurred.

18. On these occasions, the applicant would attend their home and assist by physically fighting demons. The victim observed the applicant physically fighting demons with his hands and rolling around on the ground, arching his back. The children were instructed to sing religious songs while this occurred.

The offending

Count 1 – Commit act of indecency with victim under 10 years between 1 January and 1 November 1992

19. The victim was 6 years old, and the applicant was 35 years old.

20. During a visit to applicant’s home, the applicant asked the victim to follow him into a bedroom, which she did. Once inside, he unbuckled his belt, unzipped his pants, and pulled down his pants and underwear. He showed the victim his naked penis and told her to “Have a look at it”. He told her not to tell anyone. He then pulled back up his pants and they both left the bedroom. Afterwards the victim did not tell anyone because she was scared. This was the first time that something like that had happened with the offender. She said it was very quick.

21. There were also several uncharged acts which put the events in context. Some time after Count 1, when the victim was in Year 2 and about 7 years old, she was sitting with the applicant behind her on the back steps of her home. The applicant was running his fingers through her hair and she could feel the applicant’s hard penis against her back. At this time, her hair was short, and the applicant told her to grow it long to protect her from evil spirits. She did so because she believed the applicant. Around the same time, the applicant kissed her on the lips and said it was an “anointed kiss”. After this first kiss, the applicant regularly gave her an anointed kiss on the lips, in a variety of locations, including at home, on drives and after church. She understood that they were to provide her protection in the spiritual realm. When he kissed her he would say things like “[t]here are nasties hanging around”, meaning demons.

Counts 2 and 3 – Indecent assault where victim under 10 years between 1994 and 1995

22. Between 1994 and 1995, the victim was 9 years old, and in Year 4.

23. After being told the victim was having bad dreams, the applicant said, “Let’s go for a drive […] I want to take you for a drive so I can teach you how to protect yourself in the spiritual realm”. She was taken to a park in the dark at around 7:00pm.

24. Count 2 involved the applicant playing with her hair, giving her an anointed kiss, and telling her that she was his “little girl”. Count 3 involved the applicant rubbing her breast above her clothes, telling her, “You were born for me” (which the victim believed) and that only the applicant “knew her spiritually”.

25. After the applicant stopped rubbing her breast, she was driven home and told not to tell anyone. The victim did not tell anyone as she felt that if she did, Satan would come after her.

Count 4 – Aggravated indecent assault where victim under 16 years in 1997

26. In 1997, the victim was 11 years old, and in Year 6.

27. As to Count 4, the victim was at home one day and the applicant came over. Again, they sat together on the front steps of her home and he sat behind her brushing her hair. She felt his erect penis against her back. His hands were around her and rubbing her breasts over her clothes. As this was occurring, a neighbour drove past and pulled into a nearby driveway. The applicant continued brushing the victim’s hair and said “Just stay still.” When asked why, the applicant said “If we stay still, we’ll disappear in the spirit realm and they won’t see us.” She froze because she believed him.

28. There were also uncharged acts put before the jury. They included that he kissed her neck saying she was beautiful and a pretty little girl.

Counts 5 and 6 – Aggravated indecent assault where victim under 16 years in 1998

29. In 1998, the victim was 12 years old, and in Year 7.

30. On that occasion, the applicant visited her home for “one-on-one time together” whereupon they went for a drive after dusk. She initially understood that they would talk about spiritual counselling, however, he talked about his marriage problems and loneliness.

31. He kissed her on the lips saying it was an anointed kiss or a kiss from God. He rubbed her breasts on the outside of her clothing. These were uncharged acts. He then took her hand and placed it on his penis on the outside of his clothing and made her move it up and down on his penis. The victim felt the applicant’s penis was erect. He said he had not felt like that for a long time (Count 5). The applicant then placed his hand on her groin area and rubbed her vagina over her clothing while he said, “You’re a pretty girl” (Count 6).

32. Afterwards, the applicant took the victim to McDonald’s for an ice cream. She felt like it was a reward, and the applicant said she was “a friend of the [religious order]”.

Counts 7 and 8 – Aggravated indecent assault where victim under 16 years in 1998

33. A few weeks after Counts 5 and 6, the applicant drove the victim, still 12 years old, to an isolated area at night. He said he wanted to discuss spiritual welfare and the spiritual realm. When they arrived at the isolated area, he said he was lonely and needed a cuddle. He kissed her on the lips again, saying this was an anointed kiss from God, “From my lips to your lips”. Again, he brushed her hair and kissed her on the cheek and neck. The applicant then rubbed the victim’s breasts on the outside of her clothing. These were all uncharged acts.

34. The applicant then moved his hand to the victim’s groin area and rubbed her vagina on the outside of her clothing (Count 8). The applicant then took the victim’s hand and placed it on his groin, moving her hand up and down on his penis and making her squeeze it through his clothing (Count 7). He told her that she was beautiful.

Count 9 – Aggravated indecent assault where victim under 16 years in 2000

35. In 2000, the victim was 14 years old, and in Year 9.

36. One school day, the victim was sick with period pain and stayed at home. She told her mother about it. The applicant dropped by the home and asked how the victim was going, to which Ms Williams replied the victim was in her room, laying on her bed.

37. The applicant went to the victim’s room, pulled back the doona and kissed her lips. He said, “You’ve got some nasties hanging around” which she understood to mean evil spirits. The applicant placed his hand on her vagina over her clothing and said “You have a generational curse from your grandmother […] and it affects the women in the family”. He then laid on top of the victim and rubbed his groin against her vagina, moving his body up and down in slow motion. They were both clothed. The victim could feel the applicant’s penis through her clothing.

38. The victim felt as though the applicant was trying to penetrate her through her clothing and described it as dry humping. This act was Count 9. The applicant told her she was sexy and beautiful, and at the same time he was rubbing his groin against her. He kissed her and inserted his tongue in her mouth.

39. Eventually the applicant stopped and said “In half an hour you will feel better, I got rid of the evil spirits attacking your vagina”. She thanked the applicant and later told her mother who responded, “That makes a lot of sense why you’ve been in pain. We are so lucky to have your Uncle David”.

Counts 10 and 11 – Aggravated sexual assault where victim under authority; aggravated indecency where victim 16 years or above and under authority between 2001 and 2002

40. Between 2001 and 2002, the victim was 16 years old, and in Year 10.

41. The applicant visited her home around dusk. He said he wanted to give her spiritual counselling and drove her to an isolated location in the dark. He spoke to her about the need to protect herself in the spiritual realm and about different types of evil spirits, in particular a named spirit which was mainly in women and which controlled women. He again referred to the generational and family curse. The victim believed what he told her and that he was a prophet.

42. While they were in the van talking, the applicant pulled down his shorts and the victim saw his erect penis. He said “You know how I’ve given [you] an anointed kiss on the lips? How about you kiss my penis?”. He pulled her head towards his groin and the victim performed fellatio, moving her mouth up and down on his penis about three times (Count 10). He said “You’re Uncle David’s little girl”. After she stopped, the applicant masturbated until ejaculation (Count 11) before telling her that she was a friend of the religious order.

43. The victim did not consciously or voluntarily agree to either of the acts the subject of Counts 10 and 11. However, the victim was scared and fearful that failing to pleasure the applicant was a sin against God and would lead to attacks from spirits and demons. She had seen the applicant fight demons and did not want that to happen to her. The applicant told the victim not to tell anyone again and that they had a “special relationship”.

44. Around the time of the victim and her family moving house, the applicant told her she was to be his apprentice, meaning she would become a prophetess. She believed him and believed him to be a prophet. On other occasions, if the victim did not do what the applicant wanted, he would use that against her. At one stage, if she got sick, the applicant would say things like, “Remember the other day when you didn’t please me or make me happy? That’s why you got sick.”

Counts 12, 13 and 14 – Aggravated indecent assault where victim under authority; aggravated indecency where victim aged 16 or above and under authority; aggravated sexual assault where victim under authority between 2001 and 2002

45. Around the time Counts 10 and 11 were committed, when the victim was 16 and in year 10, the applicant told the victim that he always felt like a woman inside and God told him he (God) had given them the relationship. He unzipped his pants and moved her hand up and down his unclothed penis (Count 12). They then moved to a bedroom where they both removed their clothing. The applicant wore the victim’s bra and his penis was visible through the purple women’s lingerie underpants he was wearing. He said he wanted to wear a bra so he felt like a woman. He rubbed his breasts on the outside of the bra and took the victim’s hand and placed it on his breasts on the outside of the bra. These were uncharged acts. As the victim rubbed the applicant’s breast, he rubbed his penis through the lingerie. The victim could see the applicant’s penis through the lace (Count 13). He then told her to lie on her back and inserted his fingers into her vagina (Count 14), saying that it would make her feel better and cleanse her mind from evil spirits. The victim believed this because she believed him to be a prophet.

46. The applicant instructed the victim to lie on her stomach and inserted his erect penis in her anus, causing her pain. He said, “You are such a pretty little boy”, and ejaculated in her anus. However, the victim later gave evidence that she does not really recall if the anal intercourse happened on that particular occasion because it happened so many times.

47. The victim did not consciously and voluntarily agree to any sexual acts with the applicant on that or other occasions. She did not say anything because she was scared the applicant would get angry and she would disappoint him. To do so would be sinning against God because she believed the applicant was a prophet. There were other uncharged acts involving many occasions of anal intercourse when the victim was aged between 16 and 19. This would occur quite regularly, although frequency would vary between weekly, fortnightly, and monthly. There were also regular instances of the victim performing fellatio on the applicant at this time.

Count 15 – Aggravated sexual assault where victim under authority between 2002 and 2003

48. Between 2002 and 2003, the victim was 17 years old and was repeating Year 10.

49. While at her home, she was asked by the applicant to roleplay two gay men and he would have anal intercourse with her. He told her that he was not to engage in vaginal intercourse as it was a “sin against God”. They engaged in the roleplay and the applicant inserted his penis into her anus wherein he ejaculated (Count 15). This was a very painful experience for the victim. She was again told that they had a special relationship, that she was a friend of the religious order, as well as that she was born for him and for his pleasure. He had spent so much time fighting evil spirits that he needed a good friend, and she was there to please him. That was why God had allowed the relationship. Again, the victim did not consciously and voluntarily agree to any of these sexual encounters.

Count 16 – Aggravated indecency where victim aged 16 or above and under authority between 2002 and 2003

50. Count 16 was committed around the time of Count 15 when the victim was 17. It involved the victim purchasing lingerie for the applicant at his request. In the victim’s bedroom, he wore the lingerie while she was in her underwear. He told her to touch his breast, so he felt like a woman. As this occurred, he stroked his penis and masturbated until ejaculation. This was Count 16. He told her afterwards that felt so much better. Again, the victim did not tell anyone about what happened. Again, she was told on many occasions she was born for these acts to happen to her, he was a prophet, she was his apprentice and was to be a prophetess, and she believed she was “kind of his servant”.

51. Around 2008 and 2009, the victim’s contact with the applicant was less frequent. By this time the victim was 23 and had moved out of the house. She “wanted to be free”. She started using party drugs and smoking weed. Around this time she overdosed on drugs and afterwards resumed regular contact with the applicant. She thought “God was punishing [her]”, and that in order to protect herself she had to return to him. The victim told the applicant about her overdose, and he said “It’s okay. You’re Uncle David’s little girl. I will fix the evil spirits that have been attacking you.” She moved back in with the applicant and lived with him for about a year. At some stage she met a new partner and wanted to move in with her, which she discussed with the applicant. When she was about 26 or 27, on her birthday, the applicant said they were to have full sex, meaning penile-vaginal intercourse. They did this in the bedroom, and this was the first time the victim had had such intercourse. The applicant told her that it was to get rid of evil spirits on her 26^th birthday so that she would be free.

52. Shortly afterwards, the victim told her mother that the applicant had removed the evil spirits from the vagina. Her mother said, “wow” and also said how lucky they were to have a prophet in the family.

53. The victim continued to have regular contact with the applicant until she was 32. During that period, the victim moved in and out of the applicant’s house several times. She continued to believe the applicant was a prophet with a power to cast out demons and remove evil spirits.

Complaint

54. The victim complained about the applicant’s conduct from 2018. She first disclosed to her partner, who also gave evidence. Her partner encouraged her to go to the police. In about June 2018, the victim disclosed the applicant’s conduct to her cousin, the applicant’s son, and his wife. She also disclosed the conduct to her brother. She had also reconciled with her father.

55. The victim reported the applicant’s conduct to police in July 2019. She provided a number of statements. The applicant was arrested on 30 July 2021.

The Sentencing Hearing

Crown material

56. The Crown tendered documents on the sentencing hearing including a document setting out the findings of fact proposed by the Crown following trial (with footnotes referencing the trial transcript), the applicant’s criminal and custodial history (showing he had no prior criminal history at all) and the victim impact statement.

Victim Impact Statement

57. The victim impact statement was read on behalf of the victim. The victim set out that, at the age of 37, it was difficult for her to express her true feelings. The applicant’s actions had affected her life greatly, she struggled in many ways on a daily basis, and it was difficult for her to function day to day. She stated that “[d]ue to my years of abuse” she had been diagnosed with severe depression, anxiety, epilepsy and complex PTSD with flashbacks and constant triggers.

58. She continued that she was unable to work as she had daily anxiety and suffered from epileptic Petit Mal seizures which could affect her for days. She also experienced night terrors based on the abuse and had attempted to take her life on multiple occasions due to self-blame and self-hate. Now sober, she had spent many years self-medicating as a result of the abuse. The effects also flowed through to her finances.

59. She was only now starting to be able to process and understand her emotions. She cannot visit her parents or her hometown without fear of running into the applicant or a follower of the order.

Applicant material

60. The applicant tendered a psychological report prepared by John Nolan. As the material in the report was relevantly set out in the remarks on sentence, summarised below, I will not repeat it here.

Submissions before the sentencing judge

61. Relevant to the first ground of appeal, it can be noted that in the Crown’s written submissions before the sentencing judge, the Crown pointed to specific aggravating factors pursuant to s 21A of the Sentencing Act. The factors submitted to be relevant were:

1. Abuse of trust – s 21A(2)(k), both as a family member and as a religious/spiritual leader claiming that he was a prophet of God; and

2. In the home of the victim or any other person – s 21A(2)(eb), given Count 1 occurred in the bedroom of the applicant’s house, and Counts 4 – 9 and 12 – 16 at the victim’s house.

62. I note that the applicant conceded that s 21A(2)(k) and s 21A(2)(eb) were enlivened.

63. It can be noted that there was a slight divergence of submissions between the parties in relation to Counts 10 – 16 and the applicability of s 21A(2)(k) but that divergence fell away during oral submissions .

64. In oral submissions, the applicant’s counsel first turned to the victim impact statement. The following interaction took place:

Counsel: 

Firstly, just very briefly in relation to the victim impact statement. There is mention of, or mention was made that the abuse has caused her epilepsy.

Sentencing Judge:

I saw that.

Counsel:

On my frantic Google searches, I have been unable to learn a great deal other than that there is perhaps a body of evidence that sexual abuse can cause non-epileptic seizures but in the absence of medical evidence to support that claim in relation to what [the victim] says, my submission would be that you would not take into account that the abuse has caused that in circumstances where (a) she calls them epileptic seizures, and (b) in circumstances where her mother suffered from epilepsy, and again I don’t know if its hereditary but in the absence of medical evidence it’s simply a matter of what weight you would give to that.

In the broad scheme of things where there are limitations as to how the victim impact statement is taken into account, I don’t object to it but in my submission, your Honour wouldn’t give it great weight.

Sentencing Judge:

I understand.

65. There was no further mention of the victim impact statement during the sentence proceedings. Oral submissions were made in relation to various other aspects of the sentencing exercise which need not be set out here.

The Remarks on Sentence (ROS)

66. After setting out the offences, the maximum penalties and then the facts, the sentencing judge set out orthodox sentencing principles concerning findings made against and in favour of the applicant, objective seriousness, moral culpability and instinctive synthesis.

67. His Honour then stated the following in relation to the statutory aggravating factorsas follows:

“Now, the court is not to have regard to any aggravating factor in sentencing if it is an element of the offence. There are a number of statutory aggravating features in the Crimes (Sentencing Procedure) Act 1999 in section 21A(2), and also mitigating factors in subsection 3.”

68. The sentencing judge also noted that for child sexual offences (that is, involving a victim under 16 years), the applicant must be sentenced according to the patterns and practices at the time of sentencing. Otherwise, for the offences which occurred when the victim was 16 and 17, s 21B of the Sentencing Act provides that a court may sentence an offender according to the patterns and practices at the time of the offence, although his Honour found that considering the ongoing nature of the circumstances of the offending and the continued pattern, the offender should be sentenced according to the sentencing patterns and practices at the time of sentencing. That approach also provided consistency in the sentencing exercise.

69. The sentencing judge noted s 25AA(3) of the Sentencing Act which provides that the Court must have regard to the trauma of sexual abuse on children at the time of sentencing, which may include recent psychological research or the common experience of the courts.

70. The religious context was accepted by the sentencing judge as applying to all the offending. His Honour accepted that the applicant manipulated the victim by claiming to be a prophet with a special relationship with God, and instilled fear into her by this means; he could protect her against the generational curse; and used his religious position and claims to sexually offend against her. His Honour stated:

“She was a person really susceptible to this who was already heavily influenced by religion in her own family, but I find he really took it to another level. In terms of objective seriousness, the Crown submits there were aggravating features for count 1, 4, 9, 12, 13, 14, 15 and 16, which is that they occurred in the victim’s home or the accused’s home. In counts 1 to 9, they were committed in circumstances where the offender abused the position of trust or authority. That is (k) of section 21A(2).

As he was the victim’s uncle and a prominent figure in her life following the separation of her parents, I note that this is an aggravating factor as an element of counts 10 to 16, and so it is not taken into account as an aggravating feature. There will be no double-counting in respect of that. I will return to mitigating factors after assessing the objective seriousness.”

71. His Honour then went on to assess the objective seriousness of each count in some detail (as summarised in the table at [6]).

72. The sentencing judge then said:

“I have taken into account, having regard to the victim impact statement, which I have read and considered – and I do take into account that there was significant emotional harm suffered by the victim as an aggravating factor under section 21A(2)(g) in respect of all these matters.”

73. His Honour noted the terms of s 21A(5A) which set out special rules in relation to good character for child sexual offences. He stated whilst this situation was not akin to circumstances where an offender joins a Boy Scouts club to have access to children, good character could only go so far and could only really be relevant to Count 1. He again referred to the victim impact statement stating: “As I said, I have had regard to the victim impact statement”.

74. The sentencing judge then set out his finding that the moral culpability of the applicant was high, from all the circumstances, including “his use of religion to have his way with his niece”.

75. Turning to the applicant’s subjective factors, the sentencing judge noted the applicant’s happy and unremarkable childhood, his marriage to his first wife in 1983, his two children aged 35 and 31 at the time of sentencing, and his marriage to his second wife in 2019. He ran a successful small business and since ceasing work several years ago has received a disability support pension. He has been able to continue a lifelong artistic hobby in prison. Whilst a keen surfer for most of his life he suffers from fibromyalgia and abdominal migraines. His health has been appropriately managed in prison.

76. John Nolan, the psychologist, concluded the applicant’s estimated intellectual capacity was in the below average to average range. There were no indications of clinical concern for anxiety or depression, nor any form of psychopathology such as paranoia, psychotic ideation or hostility. He diagnosed the offender with paedophilic disorder. Whilst noting the applicant had not given evidence on sentence, and his test responses were such as to be unlikely to be a valid reflection of the applicant’s experience, his Honour recorded that Mr Nolan was “prudently sceptical” of a number of the applicant’s responses. His Honour noted that his responses suggested he was satisfied with himself as he is, was not experiencing any marked distress, and that, as a result, sees little need for changes in his behaviour. The applicant denied any history of mental illness.

77. The sentencing judge found that a third ongoing illness, a vasovagal problem that causes him to faint (which occurred once in court) would make his incarceration more onerous, a matter he would take into account.

78. His Honour noted there was no remorse. The sentencing judge noted there was some assistance to the authorities which he took into account in the overall instinctive synthesis. His Honour did take into account his medical conditions stating “and that will be a matter I will come to in special circumstances”.

79. The sentencing judge stated that general deterrence “must loom large in this type of offending” and he also had regard to specific deterrence, given the lack of remorse and the assessment of the likelihood of reoffending as being high.

80. The sentencing judge stated he had regard to the sentencing purposes set out in s 3A of the Sentencing Act and noted that it was not in dispute that only a sentence of imprisonment would satisfy the requirements of the objective seriousness of the offending. The principles of proportionality and totality were also taken into account, and his Honour noted there needed to be some notional concurrency between the indicative sentences which would result in an aggregate sentence which is just and appropriate.

81. Finally, his Honour found special circumstances based on this being the applicant’s first time in full-time custody, the harshness of incarceration due to his age and his health and to a lesser extent, COVID, and also that he would benefit from a longer period of supervision.

82. I now turn to the grounds of appeal.

Ground one: The sentencing judge erred by denying the applicant procedural fairness in finding that the offences were aggravated pursuant to s 21A(2)(g) of the Sentencing Act.

83. Section 21A(2) relevantly provides:

(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows –

[…]

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

84. There was limited discussion during the course of the sentencing hearing in relation to the victim impact statement as set out above at [64]. As to the written submissions before the sentencing judge, as noted by the applicant before this Court, the Crown prosecutor did set out certain aggravating features contended to be present, but these did not include s 21A(2)(g). Further, there was no indication by the sentencing judge that he was considering this aggravating factor being taken into account in relation to any or all of the counts in the indictment.

85. It was in this context that the applicant complains about the sentencing judge’s remarks as set out at [72], and repeated here for convenience:

“I have taken into account, having regard to the victim impact statement, which I have read and considered – and I do take into account that there was significant emotional harm suffered by the victim as an aggravating factor under section 21A(2)(g) in respect of all these matters.”

86. The applicant pointed to the following observations by Howie J in R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 (“Tadrosse”) at [19], with whom Grove and Hall JJ agreed:

“In my opinion, a sentencing judge would be prudent to raise with the parties during addresses whether any of the factors listed in s 21A(2) apply to the particular sentencing exercise being undertaken. If the sentencing judge considers that any of the aggravating factors listed are present, it seems to me that, in fairness to the offender and as a matter of good common sense, the judge should indicate to the offender’s legal representative that he or she is considering taking that matter into account so that, if necessary, the court might be persuaded that the aggravating feature is not present or for some reason it should not be taken into account in the peculiar circumstances of the particular case.”

87. The applicant further pointed to Barr J’s observations in Stokes v R (2008) 185 A Crim R 74; [2008] NSWCCA 123 (“Stokes”) at [13]-[15]:

“It was submitted on appeal the hearing had been conducted unfairly to the applicant. His representative had been led to believe that the Crown was not asserting the presence of any aggravating feature. No mention was made of any fact which might be seen as aggravating the offences. His Honour did not express any intention of taking into account any feature as aggravating the applicant’s criminality. If the matter had been aired, the legal representative of the applicant would have been able to deal with it, and perhaps, persuade the sentencing judge that no such aggravating feature was in fact present or should be taken into account in imposing sentence.

As Howie J said in R v Tadrosse […] it is prudent for sentencing judges to raise with the parties during addresses whether any of the factors listed in s 21A(2) apply to the sentencing exercise being undertaken. If the sentencing judge considers that any of the aggravating factors listed is present, in fairness to the offender, the judge should indicate to the offender’s legal representative that he or she is considering taking that matter into account so that, if necessary, the court might be persuaded that the aggravating feature is not present or for some reason it should not be taken into account in the peculiar circumstances of the case under consideration.

In the result, the ultimate sentencing decisions were made on a basis of fact which included a feature that the applicant believed was absent and with which he had no opportunity to deal. In my opinion this ground of appeal has been made good.”

88. In oral submissions, the applicant also relied on the more recent case of Dent v R [2025] NSWCCA 43 (“Dent”).

89. At the hearing of the appeal, the applicant emphasised that the lack of notice in relation to the finding about an aggravating factor is especially significant in the context of finding an aggravating factor pursuant to s 21A(2)(g), and even more if it is based on a victim impact statement. He submitted that victim impact statements are a special and sensitive category of material, and to object to the statement, or any aspect of it, is fraught with practical if not legal difficulty. Accordingly, if a judge is intending to make an adverse finding against an offender on the basis of material contained within a victim impact statement, it is particularly important to raise such a matter with the parties in advance.

90. The applicant further contended that there was practical injustice in the course his Honour took, as the applicant lost the opportunity to make submissions in circumstances where the finding was not inevitable. Contained within the victim impact statement were apparent diagnoses which were unchallenged, and, according to the applicant could not practically be challenged. These diagnoses related to both psychiatric and medical conditions. Further, in support of the contention that the finding was not inevitable, it was submitted that there was a high degree of harm inherent in the offences themselves (reflected by the maximum penalties in addition to the provision in s 25AA of the Sentencing Act, applying to child sexual offences, which the sentencing judge specifically adverted to), and in most instances, the findings of objective seriousness were significantly below midrange. The applicant also submitted that contributing to the non-inevitability of the finding in this matter were other factors: being raised in what may be described as a cult, spiritual abuse, financial abuse, and the victim’s relationship with her mother.

91. In summary in relation to ground 1, the applicant submitted that a combination of factors meant that the finding was not inevitable, and accordingly, there was a denial of procedural fairness.

92. In response, in relation to ground 1, the Crown contended, citing established authority (R v Packer [2023] NSWCCA 87 (“Packer”), which at [75] quoted from R v Tuala [2015] NSWCCA 8; (2015) 248 A Crim R 502 (“Tuala”) at [77]-[81] (per Simpson J, (Ward JA and Wilson J agreeing) and Muggleton v R [2015] NSWCCA 62; (2015) 250 A Crim R 180 (“Muggleton”)), that a victim impact statement can be used as evidence to establish the aggravating factor beyond reasonable doubt, although acknowledged that in some cases, considerable caution must be exercised before a victim impact statement can be used to establish the aggravating factor beyond reasonable doubt.

93. Further, the Crown submitted, the aggravating factor of substantial harm may be established by inference from the objective facts of the offending: O’Brien v R [2023] NSWCCA 41.

94. The Crown accepted that neither the Crown nor the applicant made submissions about s 21A(2)(g) before the sentencing judge, and that the victim impact statement was tendered without objection. The only limitation sought by the applicant was by way of a query as to the weight to be given as to the victim’s claim that her epilepsy was caused by the offending. There was ample material in the victim impact statement to justify the sentencing judge’s finding beyond reasonable doubt. That the offence was aggravated by the substantial emotional harm to the victim was “obviously… open on the known material” (Fuller v R [2024] NSWCCA 106 (“Fuller”) citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; [1994] FCA 1074). That material was not used in a manner which could not reasonably have been anticipated by the applicant.

Consideration of Ground 1

95. The principles relating to procedural unfairness in the context of sentencing appeals are conveniently set out in Weir v R [2011] NSWCCA 123 (“Weir”) at [64]-[67]:

“It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.

The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose.

The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].

One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18].”

96. As also stated by the High Court in DL v R (2018) 265 CLR 215; [2018] HCA 32 at [39]:

“…Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court… (Footnotes omitted).”

97. Further, as stated in HT v R (2019) 269 CLR 403; [2019] HCA 40 at [17]-[18]:

“It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made.

Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept, rather, it is essentially practical. The concern of the law is the avoidance of practical injustice.” [Citations omitted]

98. It can be seen from a survey of the authorities involving claims of procedural unfairness in criminal sentencing proceedings that the application of the principle of procedural fairness is case specific, highly contextual, and not necessarily aligned with the steps taken in an administrative law context: see too Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [24].

99. As to the alternative outcomes following a finding of procedural unfairness in sentence appeals, it can be observed that where there has been unfairness resulting in an evidentiary problem such as a lost opportunity to call evidence (including where the calling of evidence may affect the applicable maximum penalty), remittal to the original sentencing court for further hearing can be ordered: see for instance Pantorno v R (1989) 166 CLR 466; [1989] HCA 18; Le v R [2007] NSWCCA 330; Houssenloge v R [2010] NSWCCA 9; Cherdchoochartri v R (2013) 277 FLR 126; [2013] NSWCCA 118; DL v R; R vWhite [2018] NSWCCA 238; and Purdie v R [2019] NSWCCA 22.

100. This outcome (of remittal) can be contrasted to the situation where the complaint is limited only to the lost opportunity to make submissions before the sentencing judge. That is, where what would have been submitted can be put in submissions before the appellate court, remittal is usually not the outcome sought or ordered. Often, the appellate court will re-exercise the discretion in light of the submissions put to it: see for instance Tadrosse; Stokes; Weir; Lehn (2016) 93 NSWLR 205; [2016] NSWCCA 255; Edmonds v R [2022] NSWCCA 103; Carl v R [2023] NSWCCA 190; Smith v R [2024] NSWCCA 59; Fuller; Da Silva v R [2024] NSWCCA 216. In some cases, the Court has determined that no lesser sentence was warranted, because the finding was inevitable: see for instance, Baroudi v R [2007] NSWCCA 48 and Dent.

101. Turning now to the instant case, in my view, the manner in which the case was conducted before the sentencing judge (both orally and in writing) resulted in the applicant being led to believe (to use the words from Stokes (set out above at [87])) that the only aggravating factors which were to be considered by the sentencing judge, were those identified by the Crown. As discussed further in relation to Ground 2 and also in relation to the question of re-sentence, this particular aggravating factor involves some nuance, and it cannot be said that the finding was inevitable. The applicant was thus deprived of making submissions as to whether the aggravating factor in s 21A(2)(g) was made out. It could not be said that there was no practical injustice. In effect, by their approach, the parties limited the issues for determination – which did not include an issue about s 21A(2)(g). Of course, the sentencing judge was not bound by that approach. Nevertheless, if proposing to depart from what was effectively a joint approach, he was required to notify the parties that this was so: see also Smith at [10] and [69]. The failure to do so was, in the circumstances, a denial of procedural fairness. In my opinion, this has resulted in a miscarriage of justice, and this ground of appeal has been made out.

102. I will deal further with the content of the victim impact statement when I come to re-exercise the sentencing discretion.

Ground two: The sentencing judge applied the incorrect test in finding that the offences were aggravated pursuant to s 21A(2)(g) of the Sentencing Act.

103. Having found ground 1 made out, and with no suggestion from the parties that remittal is the preferred outcome, it is necessary to re-exercise the sentencing discretion. It is thus not strictly necessary to deal with ground 2. However, it is worth observing that, in my view, it cannot be assumed that the sentencing judge simply misspoke when he found there was “significant” emotional harm, rather than “substantial” emotional harm. Whilst it can be observed that in many contexts there would be no substantive difference between these two words, it is not the case in this context. For a court to find this aggravating factor, it must be satisfied beyond reasonable doubt that “the injury, emotional harm, loss or damage caused by the offence was substantial”. This is not a straightforward consideration, given it can be assumed that most criminal offending would cause some degree, even a significant degree, of such injury, harm, loss or damage.

103. The authorities make clear that for this aggravating factor involving “substantial” emotional harm to be made out, the emotional response is required to be “significantly more deleterious than that which any ordinary person would have been subjected”: R v Youkhana [2004] NSWCCA 412 at [26], or extending beyond what is ordinarily encompassed in offences of this kind: Tuala at [84]. See also Packer, which at [75] cites Tuala.

104. Given the complexities of this particular aggravating factor, a feature not assisted by the lack of submissions in relation to it because it was not identified as a potential aggravating factor, in my view, it cannot be assumed that his Honour simply misspoke.

105. Independently of the above, in the circumstances error should also be inferred because the reasons themselves do not suggest that the correct statutory test was applied: the section was not set out and, by way of further example, aside from the challenged words, there are no other references at all to the need for the damage caused to be “substantial”. This ground has also been made good.

Ground 3: The aggregate sentence was manifestly excessive

107. It is appropriate to deal with the submissions made in relation to this ground when I proceed to re-exercise the sentencing discretion.

Ground 4: The sentencing judge erred by setting the commencement date of the sentence as 5 September 2023

108. The respondent accepts that it would be open to the Court to conclude that the sentencing judge failed to take into account a period of four days pre-sentence custody that the applicant had served prior to him being remanded in custody on 5 September 2023.

Re-exercise of the sentencing discretion

Applicant’s submissions

109. As noted, the applicant does not challenge the findings of objective seriousness made by the sentencing judge, nor does he challenge any other findings other than that made pursuant to s 21A(2)(g). As to the latter, he contends that the Court would not find that the emotional harm was substantial, in the sense that it is beyond that which would be expected from such offences. He cites Tuala in support of the proposition that where the only evidence of harm is a victim impact statement, considerable caution must be exercised before it can be used to establish the aggravating factor to the requisite standard, and notes (as observed above) that the Crown did not submit at the sentencing hearing that this aggravating feature was present.

110. The applicant also noted that even if the Court was of the view that the victim impact statement generally established “substantial harm” the evidence did not allow for such a finding in relation to specific offences, and a global approach is impermissible.

111. The applicant submitted that the Court would not find that any of the offences were aggravated by the victim suffering “substantial harm”.

112. Finally, the applicant submitted that this Court should arrive at indicative sentences in relation to Counts 10 and 15 less than those indicated by the sentencing judge, and thus ultimately submitted that the Court would find that a lesser sentence should be imposed.

Crown submissions

113. As to the victim impact statement, the Crown accepts that a sentencing judge should not approach the assessment of the s 21A(2)(g) aggravating factor ‘globally’ but rather must consider which offence or offences might be relevant to a consideration of that factor. However, as Packer illustrates, a Crown appeal was upheld in circumstances in which the sentencing judge refused to find the aggravating factor was established on the basis that there was a “technicality/complexity […] in isolating […] which offence or offences the relevant aggravating circumstance is to be applied”. On re-sentence, this Court found that s 21A(2)(g) applied to each of the counts in respect of one of the two particular victims, but not the other.

114. The Crown submits that the applicant’s offences were serious and required a significant period of full-time custody. The sentence must reflect the principle of general deterrence and denunciation, as well as the protection of the community.

115. In particular, the Crown notes that the offending was extensive and prolonged, continuing over eleven years. The charged incidents occurred on ten occasions with the gravity of the offending escalating over time.

116. The offences were undertaken with the applicant leveraging his position as a religious leader and manipulating the victim within this context.

117. As noted above, the applicant’s criminality escalated ultimately to penile-anal sexual assault of the victim, aged 17, because vaginal sex was “a sin against god”.

118. The Crown submits that even if the Court does not accept that the aggravating factor was established beyond reasonable doubt, it is plain that the impact on the victim as a result of the lengthy period of serious offending committed upon her was deleterious and required significant weight to be given to retribution and punishment.

119. Further, the Crown notes that the applicant continues to deny his guilt and as such there is a high risk of reoffending, and his prospects of rehabilitation are guarded.

120. The Crown submits that no lesser sentence is warranted in law.

Consideration

121. The use of victim impact statements in sentencing has been the subject of thorough analysis by this Court. In Tuala the following was stated:

“[77] By s 28 of the Sentencing Procedure Act, complainant impact statements are part of the landscape in the sentencing process. That is not in issue. What is here in issue is the extent to which a complainant impact statement can be used to prove an aggravating factor of the kind specified in s 21A(2). Almost invariably the aggravating factor in question is that specified in s 21A(2)(g). It is to be remembered that such aggravating factors must be proved beyond reasonable doubt.

[78] In some of the cases considered above, considerable weight was attached to the manner in which the sentencing process was conducted. Where no objection was taken to the complainant impact statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened. (It is, perhaps, a little unfair to take into account that no objection to the admission of the statement was taken, given that such statements are admissible by statute, but that does not preclude argument as to the weight to be attributed to them).

[79] Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents.

[80] Difficulties can arise, for example, where:

●   the facts to which the complainant impact statement attests are in question; or

●   the credibility of the complainant is in question; or

●   the harm which the statement asserts goes well beyond that which might ordinarily be expected of that particular offence; or

●   the content of the complainant impact statement is the only evidence of harm.

RP is an example of the third of these.

[81] In these cases, considerable caution must be exercised before the complainant impact statement can be used to establish an aggravating factor to the requisite standard.”

122. Further in Muggleton, the following was stated:

“[40] The degree of emotional harm suffered by the complainant can be established by victim impact statements. Such statements have been described by this Court as "a particular species of evidence available to a sentencing judge": R v Wilson [2005] NSWCCA 219 at [25] per Simpson J, Latham J agreeing. A sentencing judge is entitled to receive and consider complainant impact statements (as her Honour did in the instant case) under s 28(1) of the Crimes (Sentencing Procedure) Act as long as they comply with the regulatory requirements. Section 30A of the Crimes (Sentencing Procedure) Act permits a complainant to read, or to have read out by another, a complainant impact statement. In R v Tuala [2015] NSWCCA 8 at [45]-[84] Simpson J (Ward JA and Wilson J agreeing) comprehensively analysed the decisions of this Court in which the use to which such statements can be put has been considered.

[41] Such statements can be used to establish the extent of the harm suffered by the complainant and, accordingly, whether it amounts to substantial emotional harm within the meaning of s 21A(2)(g) of Crimes (Sentencing Procedure) Act. As Hunt CJ at CL said in R v Previtera (1997) 94 A Crim R 76:

In cases where the complainant is still alive - that is, the complainant directly injured by the offender's criminal act - complainant impact statements will no doubt serve the useful purpose in the criminal courts of establishing the consequences of the crime upon that complainant.

…

[43] In Aguirre v R James J approved of the remarks made by Simpson J in R v Wilson [2005] NSWCCA 219 and said at [77]:

In the proceedings on sentence the complainant impact statements were tendered and admitted without objection. No submissions were made in the proceedings on sentence that the use of the complainant impact statements should be limited or that the evidentiary weight to be given to them should be limited. In these circumstances the sentencing judge could properly use the complainant impact statements to establish the aggravating factor in s 21A(2)(g) [of the Crimes (Sentencing Procedure) Act].”

123. In addition, the following observations by Adamson J (R A Hulme J agreeing) in Culbert v R [2021] NSWCCA 38 highlight the care with which the aggravating feature in s 21A(2)(g) must be considered in offences involving sexual abuse of children.

“[115] It has become a matter of common experience in this Court that the adverse psychological effects of sexual abuse on children tend to be long-lasting. For this reason, care must be taken to avoid double-counting by finding substantial harm when the harm suffered is no more than the consequences that typically flow from such offending: R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [106] (Leeming JA, Johnson and Hall JJ). The typical effects, as appear in judgments of this Court, include difficulties with intimate relationships, self-loathing, guilt, self-harm, and a tendency to self-medicate. These are matters to which the sentencing judge was required to have regard when sentencing the applicant: see generally the discussion of s 25AA in Corliss v R [2020] NSWCCA 65 at [73]-[97] (Johnson J).

[119] The relevant principles as to the use that can be made of victim impact statements to establish substantial harm as a matter of aggravation were summarised, with reference to authority, by Leeming JA (Harrison and Hamill JJ agreeing) in Gagan (a pseudonym) v R [2020] NSWCA 47 as follows:

“[28] It was common ground that the aggravating factor [substantial harm] had to be established beyond reasonable doubt, as Simpson J noted in R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at [77]. Her Honour later observed that there can be difficulties in the use of victim impact statements where their content is the only evidence of harm. Her Honour cautioned that in such a case ‘considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard’: at [80]-[81].

[29] True it is that there are cases where victim impact statements have been used to ground a finding of substantial harm: see for example Muggleton v R [2015] NSWCCA 62; 250 A Crim R 180 at [40] and Marrowv R [2015] NSWCCA 282 at [52]. Each case turns on its own facts and, in particular, on the nature of the harm disclosed in the statement.”

[120] The extent of the harm suffered by the victims was described in considerable detail in their victim impact statements. Although the sentencing judge did not identify the two matters relied on by the Crown as justifying the finding of substantial harm, hypervigilance and guilt for the harm suffered by younger victim or victims, these circumstances were apt to elevate the harm suffered by the victims from the usual harm to be expected from such offences to the level of “substantial” harm, as required by s 21A(2)(g). In these circumstances, I am satisfied that it was open to the sentencing judge, having regard to the content of the victim impact statements and the submissions made at the sentence hearing, to find that the harm suffered by the victims was substantial.”

124. It can also be noted that s 30B(1) of the Sentencing Act provides that a court “must accept a victim impact statement tendered by a prosecutor if the statement complies with the requirements of this Division and the regulations”.

125. The victim impact statement in this case was the subject of some limited attention from the applicant’s counsel at the sentencing hearing, as noted above at [64]. Not only was the causation of the epileptic seizures called into question, it was also stated, in relation to the victim impact statement as a whole, that:

“In the broad scheme of things where there are limitations as to how the victim impact statement is taken into account, I don’t object to it but in my submission, your Honour wouldn’t give it great weight. […]”

126. Leaving aside the condition of epilepsy (which I agree would need further evidence if it were to be relied upon in the sentencing exercise as having been caused by the offending, and, as I understand it, it is more obviously categorised as a medical condition rather than an emotional one) the other matters covered by the victim impact statement, as set out at [57]-[59] were not the subject of challenge except as to weight. Whilst difficult, it is not impossible for defence counsel to take issue with matters contained in such a statement.

127. This was a sentence following a trial where the victim’s account of the offending must have been substantially accepted. The victim impact statement contained a detailed description of the extent of the harm suffered by the victim. As to emotional harm, it was not disputed that the victim had been diagnosed with complex PTSD and had made multiple attempts to take her own life. It can also be noted that the victim said that she was in constant fear of being found, and that she could not visit her parents or her hometown without the fear of running into the applicant or a religious follower. In my view, in combination, this shows harm which goes beyond that ordinarily encompassed in offences of this kind.

128. I am satisfied beyond reasonable doubt that the emotional harm set out in the victim impact statement can properly be characterised as substantial.

129. In making this finding, I acknowledge the applicant’s submissions that there is a high degree of harm inherent in the offences themselves (shown by not only maximum penalties, but also s 25AA of the Sentencing Act which applies to the child (under 16 years) sexual offences), and that in many instances the findings of objective seriousness were significantly below midrange. I also acknowledge that the overall context of the offending added potentially complicating elements in terms of causation — including being raised in a cult-like controlled/coercive environment which in turn provided additional problems with finding appropriate adult support.

130. None of these matters, however, lead me to find that the emotional harm caused by each of the offences was anything other than substantial. This was not only a close family member abusing the victim (with many of the offences occurring whilst she was under 16), but the abuse was committed within a particularly manipulative and isolating environment given the religious position the applicant held within their religious organisation. Further, it is artificial to view the offences out of context. Although it is not permissible to apply the s 21A(2)(g) aggravating factor globally (see s 53A(2)(b) Sentencing Act), it is also inappropriate to view each of the offences in a factual vacuum. The offences must be viewed within the context of the ongoing and continued pattern of offending, which escalated over time.

131. In performing the re-sentencing exercise I would not come to any lesser indicative sentence in relation to any of the offending, nor am I of the view that any less severe aggregate sentence is warranted in law.

132. The only adjustment I would make is to backdate the starting date of the sentence to take into account the four days spent in custody prior to the applicant’s conviction.

Proposed orders

133. The orders I propose are:

1. Extend time to file the notice of appeal.

2. Grant leave to appeal.

3. Allow the appeal.

4. The aggregate sentence passed in the District Court is confirmed. The sentence of 16 years imprisonment with a non-parole period of 11 years commences on 1 September 2023 and concludes on 31 August 2039, with the applicant eligible for release on parole on 1 September 2034.

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Decision last updated: 13 August 2025