Cabezuela v R

[2020] NSWCCA 107

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Cabezuela v R [2020] NSWCCA 107

Hearing dates:

1 May 2020

Date of orders:

25 May 2020

Decision date:

25 May 2020

Before:

Hoeben CJ at CL at [1]
Walton J at [2]
Harrison J at [140]

Decision:

(1) Grant leave to appeal with respect to ground 3 of the application for leave to appeal against sentence.

 (2) Dismiss the appeal.

Catchwords:

CRIMINAL – conviction appeal – juror with legal training – whether jurisdictional error – denial of jurisdiction – section 53B of the Jury Act – discretion to discharge – trial judge cognisant of discretion

 

CRIMINAL – appeal against sentence – severity – sexual offences – manifest excess – objective gravity of the offending – indicative sentences – whether amenable to appeal – structure of sentence – subjective factors of age and health – not manifestly excessive

  EVIDENCE – fresh evidence – new evidence – circumstances COVID-19 for persons

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedures) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Jury Act 1977 (NSW)
Legal Profession Uniform Law 2014 (NSW)

Cases Cited:

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Borg v R; Gray v R [2020] NSWCCA 67
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Doe v R [2013] NSWCCA 248
Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Goodwin (1990) 51 A Crim R 328
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Abbott (1985) 17 A Crim R 355
R v Ehrenburg (Unreported, Court of Criminal Appeal (NSW), 14 December 1990)
R v Smith (1987) 27 A Crim R 315
R v Wilson (No 5) [2018] NSWSC 1077
Scott v R [2020] NSWCCA 81
Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154
Vuni v R [2006] NSWCCA 171

Category:

Principal judgment

Parties:

Maximo Cabezuela (Appellant)
Regina (Respondent)

Representation:

Counsel:
G Wendler (Appellant)
E Wilkins SC (Respondent)

  Solicitors:
Universal Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/188417

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 May 2018

Before:

Blackmore SC DCJ (Trial); Huggett DCJ (Sentence)

File Number(s):

2016/188417

Judgment

1. HOEBEN CJ AT CL: I agree with Walton J and the orders which he proposes.

2. WALTON J: On 11 April 2018, Maximo Cabezuela (“the appellant”) was arraigned upon an indictment, charging 27 counts of historical sexual offences committed upon four complainant sisters: MO (born in 1957); PO (born in 1961); JO (born 1963) and AO (born 1968) (there is an extant non-publication order with respect to the four complainants). Counts 1-4 on indictment related to MO. Counts 5-15 related to JO. Counts 16-19 related to PO and counts 20-27 related to AO.

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.

4. The appellant pleaded not guilty through a Spanish interpreter and stood trial on all counts of the indictment in the Sydney District Court of New South Wales before his Honour Judge Blackmore SC (“the trial judge”) and a jury of twelve.

5. On 11 May 2018, after deliberating for about 4.5 hours, the jury reached a unanimous verdict of guilty on all counts.

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.

7. On 7 June 2019, the appellant was sentenced by Huggett DCJ (“the sentencing judge”) to an aggregate sentence of 28 years’ imprisonment, commencing on 9 May 2018 and expiring on 8 May 2046, with an aggregate non-parole period of 18 years imprisonment, commencing on 9 May 2018 and expiring on 8 May 2036.

8. The offence, maximum penalty and indicative sentence for each count were as follows (counts 1-4 relate to MO; counts 5-10 relate to JO; counts 16-19 relate to PO and counts 20-27 relate to AO):

Count	Offence	Crimes Act	Maximum Penalty	Indicative sentence
1	Indecent assault of a girl under 16	s 76	5 years	2 years 6 months
2	Indecent assault of a girl under 16	s 76	5 years	3 years 2 months
3	Indecent assault of a girl under 16	s 76	5 years	2 years
4	Indecent assault of a girl under 16	s 76	5 years	2 years
5	Indecent assault of a girl under 16	s 76	5 years	3 years 10 months
6	Indecent assault of a girl under 16	s 76	5 years	4 years 6 months
7	Indecent assault of a girl under 16	s 76	5 years	3 years 10 months
8	Indecent assault of a girl under 16	s 76	5 years	4 years 2 months
9	Carnal knowledge of a girl under 10	s 67	Life	16 years
10	Buggery	s 79	14 years	10 years
11	Indecent assault of a girl under 16	s 76	5 years	3 years 10 months
12	Carnal knowledge of a girl under 10	s 67	Life	15 years
13	Buggery	s 79	14 years	9 years
14	Indecent assault of a girl under 16	s 76	5 years	3 years 6 months
15	Indecent assault of a girl under 16	s 76	5 years	2 years 6 months
16	Indecent assault of a girl under 16	s 76	5 years	4 years 2 months
17	Indecent assault of a girl under 16	s 76	5 years	3 years 6 months
18	Indecent assault of a girl under 16	s 76	5 years	3 years 6 months
19	Carnal knowledge of a girl under 10	s 67	Life	15 years
20	Indecent assault of a girl under 16	s 76	5 years	3 years 6 months
21	Indecent assault of a girl under 16	s 76	6 years	2 years 3 months
22	Rape	s 63	Life	14 years
23	Indecent assault of a girl under 16	s 76	6 years	3 years 8 months
24	Indecent assault of a girl under 16	s 76	6 years	3 years 2 months
25	Indecent assault of a girl under 16	s 76	6 years	3 years 9 months
26	Indecent assault of a girl under 16	s 76	6 years	2 years
27	Indecent assault of a girl under 16	s 76	6 years	2 years 10 months

9. The Crown prepared a helpful table setting out, in greater detail, the nature and circumstances of each offence and the offending, which is attached to this judgment and marked “Annexure A”.

GROUNDS

10. The appellant brought a single ground of appeal against conviction pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). That ground of the appeal was expressed as follows:

GROUND 1

That there had been a fundamental error of law going to the root of the Appellant/Applicant's trial by reason of the trial judge falling into jurisdictional error by finding that he had no legal basis to discharge a particular juror and as a consequence the Appellant /Applicant did not receive a trial according to law.

11. By grounds 2 and 3, the appellant also sought leave to appeal against the sentence pursuant to s 5(1)(c) of the Criminal Appeal Act. Those grounds were expressed as follows:

GROUND 2

That the aggregate sentence was manifestly excessive per se and because a number of indicative sentences were manifestly excessive inflating the aggregate sentence.

GROUND 3

That having regard to the COVID 19 pandemic and its relationship to the applicant’s advanced age, poor health status and custodial arrangements the sentence is manifestly excessive. ([T]he applicant seeks leave to introduce fresh evidence on this ground of application for leave to appeal).

12. The appellant relied upon the affidavit of Joseline Quinnones, his solicitor, sworn 23 April 2020, in support of ground 3, both as “fresh evidence” and “upon the usual” basis, if he were to be resentenced.

13. The Crown relied upon the affidavit of Michael Jones, affirmed 28 April 2020, if the appellant were to be resentenced.

REASONS FOR SENTENCE

14. At the outset of her reasons for sentence, the sentencing judge outlined the types of offences which the appellant faced, the date upon which the aggregate sentence imposed would commence (namely, 9 May 2018) and the making of an allowance for the period the appellant was on bail before entering into custody (a period of close to two years involving daily reporting). The sentencing judge then dealt with the circumstances of the offending against each of the complainants.

15. As to MO and counts 1-4, her Honour described the offences as follows (each extract from the remarks on sentence has been adjusted to the style of this judgment):

1. Count 1: On 3 November 1966 MO was aged nine. She was in her bedroom getting ready to celebrate her first holy communion and was about to put on her dress. The appellant came in to her bedroom, stood behind her and pressed the front of his body against her back and touched her on her vaginal area on the outside of her underwear (count 1). MO felt terrified and uncomfortable. She heard a noise outside her bedroom door and the appellant left her bedroom.

2. Count 2: From around the age of nine MO began to suffer significant migraines. On one occasion in late 1966 or early 1967 when she was aged nine, she was lying on her bed facing the wall when the appellant opened her door and entered her bedroom. He got onto her bed, lifted her dress and put his hand inside her underwear, inserting his finger in her vagina (count 2). MO could feel the appellant's erect penis against her back. She felt scared and felt pain in her vagina and told the appellant several times words to the effect of "leave me alone, please do not hurt me”.

3. Counts 3 and 4: One evening during 1969 or 1970 when MO was aged 12 or 13, she was in the kitchen finishing her school work. The appellant came into the kitchen, shut the door and touched MO's breasts (count 3). He also touched MO on her vagina on the outside of her clothing (count 4).

16. Her Honour found that between 1970 and 1973, the appellant lived in Victoria and had little contact with the family of the complainants. However, in 1973, he re-established contact with the family and moved back into the family home.

17. Her Honour then discussed the offences committed against JO.

18. As to counts 5 and 6, her Honour described the offending as follows:

One morning in 1966 when JO was aged three she went to get her toy car from under the house. The appellant was there and gestured for her to come to him. She refused where upon the appellant aggressively pulled her towards him, put his hand over her mouth and his finger to his lips and said "Shh, don't say anything or I'll tell them you've been bad". The appellant tried to pull her shorts down but she separated her legs whereupon he pulled her closer towards him and forcefully pulled down her shorts. He then inserted a finger inside her vagina (count 5) and licked her face. The appellant then unzipped his jeans and removed his penis and forced JO to kneel in front of him and put his penis in her mouth, thrusting it in and out while holding her head (count 6). After a while the appellant removed his penis and commenced masturbating until he ejaculated into his hand. He then rubbed his semen on JOs face.

19. As to counts 7 to 10, her Honour described the offending as follows:

A day or two later JO again went to get her toy car from under the house. The appellant emerged from behind a pylon under the house, took hold of JO’s arm and pulled her towards him saying "Shush, or I will tell them how bad you've been". The appellant then pulled her shorts down and inserted his finger inside JO’s vagina (count 7). He then put his penis inside JO’s mouth, moving it in and out (count 8). He then sat JO on top of him and inserted his penis into her vagina causing great pain (count 9). He then turned JO over, got onto his knees and inserted his penis in her anus (count 10). Afterwards JO saw some blood when she wiped her bottom going to the toilet.

20. Counts 11 to 13, her Honour described events in 1966, 1967 and 1968 in the following terms:

In 1966 when JO was aged three she was alone in her bedroom while her siblings were at school. The appellant entered her bedroom and got into her bed and put his finger in her vagina while masturbating his penis with his other hand (count 11). The appellant then ejaculated into his hand and rubbed his semen on JO's vagina and torso. In 1967 or 1968 when JO was aged four or five her mother asked her to go under the house to where the potatoes were stored. She did as she was asked. She saw the offender was there. He grabbed her arm, pulled her closer to him and pulled down her shorts and sat her on his lap facing him. He then inserted his penis inside her vagina, moving it in and out (count 12). He then turned JO over and thrust his penis into her anus (count 13). He then used his hand to masturbate until ejaculation. JO was under the house for about 15 to 20 minutes.

21. Count 14 concerned events in 1970 when JO was seven and her sister, PO was celebrating her first communion. Her Honour found:

JO was on her own in her bedroom wearing a dress when the appellant entered and said "It's so much easier when you wear a dress". He then pulled JO's underwear to the side and inserted his finger into her vagina (count 14). JO could hear people in the hallway and the appellant left her bedroom.

22. As to count 15, her Honour found as follows:

When JO was aged eight she broke her arm requiring plaster. One night while her arm was in plaster the appellant came into the bedroom she shared with PO and rubbed her on the vagina (count 15).

23. As earlier mentioned, counts 16-19 concerned PO. The offending arising in relation to counts 16 to 17 occurred when PO was 5 years of age (between April 1966 and April 1967) and was asked to get some potatoes from under the house. The appellant accompanied PO under the house. Her Honour described the circumstances of the offending as follows:

He unzipped his jeans and removed his penis. He told PO to touch his erect penis, which she did, and put his penis in her mouth (count 16). While the appellant's penis was in PO's mouth he inserted his finger into her vagina (count 17) and ejaculated into her mouth.

24. Her Honour described the offending in counts 18 and 19, with respect to PO, in the following terms:

In the summer of 1967 when PO was aged six she awoke one evening to the appellant touching her vagina and putting his finger inside her vagina (count 18). He pulled her by the leg to the edge of the bed and removed her underwear. He put his hand over her mouth and said "This is going to hurt a little but you need to be quiet", and put his penis in her vagina forcefully, moving it in and out causing PO pain (count 19). After a while he got up and left the bedroom.

25. Counts 20 to 27 concerned AO. Count 20 concerned circumstances when AO was five years old and was wearing her school uniform. Her Honour stated that the appellant sat her on his foot and bounced her up and down. He then wiggled his toe under her underwear and inserted his toe inside her vagina causing her pain and causing her to feel scared. As to count 21, her Honour found that, while AO was in year 3, she fell asleep on the lounge and woke up while the appellant was sitting on the lounge touching her on the vagina on the outside of her underwear.

26. Her Honour described count 22 in the following terms:

In 1979 when AO was aged ten she was in the lounge room with Luis watching television when the appellant called out to her to help him with something. She said no and the appellant told her to do as he had asked. She followed the appellant to his bedroom where he told her to pull down her underwear and lie on the bed. The appellant then pulled down his jeans and rubbed his erect penis onto AO's vagina before opening her legs and putting his penis inside her vagina (count 22). The victim screamed and told the appellant to get off her and called for Luis.

27. Her Honour described count 23 as the appellant grabbing AO’s hand and putting it on his penis in a bathroom. When she removed her hand, the appellant commenced to masturbate his own penis, instructing her to touch it at the same time.

28. As to the remaining counts 24 to 27, her Honour described the circumstances of the offending as follows:

On another occasion in 1979 AO was watching television in the lounge room with the appellant and her brother when she went to the kitchen to get a drink. The appellant followed her and told her to come to the bedroom where he shut the door, lifted her dress, pulled down her underwear and touched the outside of her vagina. He then told her to sit on the bed saying, "I'm not going to hurt you" and touched her on her vagina before inserting his little finger into her vagina and moving it around saying, "When you are a big girl, this isn't going to hurt anymore" (count 24).

On another occasion in 1979 the appellant said he wanted to show AO something and she followed him to the bathroom. The appellant locked the door, unzipped his pants and told AO to open her mouth. The appellant then rubbed his erect penis against her lips and put his penis inside her mouth, moving it in and out (count 25). After a while the appellant told AO she had been a good girl and he unlocked the bathroom door.

When AO was aged 12 or 13 and in year 6 there was an occasion when she was in her bed and the appellant came into her room and lay on top of her and rubbed his penis against her body and started licking her face and telling her to be quiet (count 26).

On another evening when AO was aged 12 or 13 and in year 6 she was in her bedroom when the appellant came in, pulled the sheet down and pulled her nightie up to her waist. She was not wearing any underwear. The appellant moved AO so she was diagonal on the bed and put his finger inside her vagina (count 27). AO's father called out, turned the light off and the appellant jumped up and left her bedroom.

29. Her Honour commenced the discussion of the objective seriousness of each offence with the following statement:

Moving then to an assessment of the objective seriousness of each offence. While the nature of the physical act in question is clearly a relevant consideration, each offence requires the individual examination of all of the proven circumstances surrounding its commission. Such circumstances include how the offence took place, the relationship between the appellant and the victim, the age of the victim, the duration of the offence, any threats, force or coercion before, during or after [by] the appellant to ensure the victim's compliance and/or subsequent silence and any pain or harm inflicted before, during or after an offence.

30. Her Honour then stated that she would commence discussion of the objective seriousness of the offences by identifying the features relevant to the objective gravity of “many, if not all of the offences”.

31. Age was a matter relevant to the assessment of the objective gravity of each offence. Her Honour found that a large number of the present offences were committed upon extremely young children, who were well below “applicable upper age threshold”, which was a matter of significant aggravation.

32. Each offence occurred in the home of each complainant, and on some occasions, in her bedroom. This was a place where the complainants were entitled to feel safe.

33. Her Honour considered that the position of the appellant was a significant matter of aggravation. She stated as follows:

The appellant was each victim's uncle. He was part of her family and was someone both she and her parents were entitled to trust, whether that be on occasions when he was caring for the victim while her parents were away from the home or whether that be because he was part of the family living in their home.

The appellant exploited and abused that trust by sexually assaulting his nieces with little to no care or regard for their welfare and psychological development. The use of a child by an adult for sexually related purposes constitutes a gross violation of their rights.

…

The breach of trust occasioned by each offence is a matter of significant aggravation.

34. Her Honour found that, whilst the offences, when looked at in isolation, might appear opportunistic and spontaneous, each offence must be considered against the background of the nature and true relationship that existed between the appellant and each complainant. In that respect, her Honour found:

The appellant engaged in the repeated abuse of his nieces, moving from one to the next as and when he desired. He committed offences on occasions when he sought out a victim, for example in her bedroom or under the house. He committed offences after directing a victim to follow him to a particular part of the house. He committed offences when he was left to care for one or more of the children. He committed offences when he returned to the family home in 1973 following the limited disclosure by [MO], by which time he must have realised there was little, if any risk his offending would be impeded and that if any complaint was made his denial would be accepted.

Accordingly, looking carefully at all of the circumstances pertaining to the offences committed by the appellant, I have no doubt at all that his conduct was deliberate, determined and to varying degrees premeditated. It would be completely inaccurate and [naïve] to describe it any other way. That said, I do make clear I am not suggesting there is present for any offence evidence of planning of a type contemplated by s 21 A(2) of the Crimes (Sentencing Procedure) Act.

35. The sentencing judge took into account the pain suffered by the complainants. She found that, on several occasions, the appellant’s actions caused physical pain, particularly in relation to counts 9, 19 and 20 but also in relation counts 10, 12, 13 and 22.

36. The appellant’s conduct was particularly humiliating, demeaning and degrading. In particular, her Honour’s attention, in this respect, was focused upon counts 6, 11 and 16.

37. The appellant used various methods of coercion and manipulation to commit the offences, and prevent complaint and further, sought to normalise the offending.

38. Her Honour then turned to a consideration of “the objective seriousness of the particular offences considered individually as established by the evidence”. She looked at each category of offence as follows:

1. As to the three counts of carnal knowledge of a girl under 10 (counts 9, 12 and 19), her Honour assessed each as “extremely serious”.

2. As to the count of rape and two counts of buggery, her Honour found:

Similarly, the count of rape (Count 22) and the two counts of buggery (Counts 10 and 13) were assessed as "extremely serious".

3. As to the 21 counts of indecent assaults upon a girl under the age of 16, her Honour found:

i. As to the four counts involving fellatio (Counts 6, 8, 16 and 25), the sentencing Judge assessed them as "most serious instances" of the offence.

ii. Of the ten counts involving digital-vaginal penetration, the sentencing Judge found three of the offences (Counts 5, 7 and 11) to be "extremely serious", four offences (Counts 14, 17, 18 and 20) to be "very serious", and the remaining three offences (Counts 2, 24 and 27) to be "serious" offences.

iii. As to the count involving the applicant forcing AO to masturbate his penis (Count 23) the sentencing Judge assessed it to be "very serious offence".

iv. As to the four counts involving rubbing or touching of the victim's vagina through her clothing (Counts 1,4, 15, 21), the sentencing Judge assessed offences of this kind to be "whilst serious... a less serious form of this offence".

v. Similarly, the sentencing Judge found the offence involving the applicant laying on AO and rubbing his penis against her body (Count 26) and the offence involving-the applicant touching MO's breasts through her clothing (Count 3) to be "less serious examples of such an offence".

39. Her Honour then dealt with the harm done to the complainants of the offences and the community. Victim impact statements were produced by MO, AO and PO. However, her Honour found that evidence did not establish that the impact on any complainant was sufficient to amount to a separate aggravating feature. Her Honour took into account the harm as being a factor referrable to the objective seriousness of the offences.

40. Her Honour recognised the offences were historic in nature but rejected the contention that the delay in the complaints had caused some unfairness to the appellant, so as to ameliorate the appropriate sentence, particularly, as the delay in complaint was “to a large measure a result of the circumstances of what this appellant both said and did to these victims”.

41. However, her Honour did take delay into account in a different context, as follows:

1. The appellant is permitted to demonstrate that he has not reoffended since the 1980s.

2. Her Honour took into account, but gave little weight, to the delay between the appellant being charged in 2016 and the “anxiety that may have been caused by him and the charges being determined by a jury”. There is no evidence that he had been left in a situation where he had spent decades of his life in anguish, fearful of the day when punishment would be imposed for his reoffending.

3. The appellant will serve his sentence in the later years of his life, which is considerably more onerous than a younger man. The sentencing judge took into account his increasing age and health concerns, although these could not be given ‘overriding consideration’.

42. Her Honour found that pursuant to s 25AA of the Crimes (Sentencing Procedures) Act 1999 (NSW) (“the Sentencing Act”), the Court must sentence the appellant in accordance with the sentencing practices and patterns at the time of sentencing, not at the time of offence. Her Honour also found that the Court must be mindful, nonetheless, of the maximum penalty and any standard non-parole period.

43. Her Honour then turned to the personal circumstances of the appellant, which were described as follows:

1. The appellant was 79 years of age at the time of sentencing. He lived in Spain until his twenties when his sister sponsored him to come to Australia, as he was the eldest sibling.

2. The appellant married in 1986 and remained married with no children. His parents were deceased.

3. He received little by way of education. Because his father had become ill, he had pressure on him to leave school to assist with his family’s financial situation. He had difficulties with the English language.

4. He had been employed in unskilled labour from a young age until his fifties, when the company he was working for closed. He did not seek further employment and was given a pension.

5. The appellant had periods of heavy drinking when he first came to Australia but stopped drinking and smoking in his late sixties.

6. Her Honour described the appellant’s medical history as follows:

The appellant has a medical history of the following: type II diabetes requiring insulin injections three times a day, ischemic heart disease, hypertension and atrial fibrillation, chronic heart failure, chronic renal failure, gout, vitamin B12 deficiency, dry eye syndrome, mild normochromic, normocytic anaemia and bilateral hearing deficits. He has had three bypass operations and has had his gallbladder removed. He requires a large number of medications to manage his conditions.

7. Reference was made to the medical opinion of Dr Baker, the General Practitioner for the appellant. She described his opinion as follows:

Dr Barker (his GP for several years) noted in March 2018 that the appellant's medical conditions were stable and relatively well controlled. Dr Barker noted in April 2018 that the appellant's cardiac status at that time would not render him unfit to continue his trial and was likely caused by the stress of Court attendances.

Dr Barker also reported mild to moderate hearing loss in the left ear and mild to moderate hearing loss in the right ear. Dr Barker did not consider the appellant's hearing loss serious enough to prevent his Court case continuing. While there is no evidence before me to suggest that the appellant's medical needs are not being addressed in custody it is reasonable to expect his ongoing custody will give rise to some difficulties as he ages, particularly in light of the nature of his offending. At the same time, as mentioned earlier, I am mindful that although his age and health are undoubtedly relevant, they cannot be given overriding consideration. It must be remembered that he committed many offences upon four victims over many years.

8. As to the appellant’s mental health at the time of offending, her Honour accepted that aspects of the appellant’s upbringing were far from ideal and that he was somewhat deprived, including, with respect to, his education. His background, whilst adverse, simply cannot account for the repeated and appalling abuse inflicted on the four complainants. Her Honour found that, otherwise, there was no evidence before the Court to suggest that the appellant’s cognitive function was impaired by any underlying condition. There was no evidence of a diagnosis of a psychiatric or psychological condition and no history of mental illness or condition operative at the time of the offences. Rather, her Honour found that the appellant “knowingly engaged in a deliberate course of serious sexual abuse” and “completely disregarded and exploited the powerlessness and vulnerability of his victims for his own motivations”.

9. Her Honour further found that the appellant appreciated the wrongfulness of his conduct and on many occasions he used techniques to secure the complainants’ silence. Even without any real level of education, he was an adult who must have appreciated the seriousness of the offending.

10. The sentencing judge stated that the appellant had expressed concern regarding difficulty remembering where he had put things, confusion when he was thinking about different places and the names of people and common objects. He felt that this had worsened over time.

11. Her Honour then made reference to a number of medical reports as follows:

In a letter dated April 2018 David Hawkins (clinical psychologist) found that the appellant had the cognitive ability to stand trial. In a letter dated 21 April 2018 Dr Barker indicated the appellant had no evidence of dementia and was of a normal mental capacity and was fit to stand trial In May 2018 the appellant was administered a screening test of cognitive ability by Dr Reutens. That test placed him within the noncognitively impaired range Dr Reutens accordingly diagnosed the appellant with minor neurocognitive disorder, not sufficient to make a diagnosis of dementia.

Six months later, in November 2018, Dr Sidorov performed the same cognitive test. The results indicated a decline in mental health. Dr Sidorov concluded that the appellant met the criteria for major neurocognitive disorder, a term also known as dementia. The diagnostic criteria included evidence of significant cognitive decline from a previous level of performance in one or more cognitive domains including complex attention, executive function, learning and memory, language, perceptual motor or social cognition.

Dr Sidorov noted that the appellant was not fully oriented to time and place, had significant deficits in his short term memory and judgment. Dr Sidorov concluded that on the balance of probabilities the appellant was at that time unfit to stand trial.

Formal testing by Dr Hepner in April 2019 identified significant impairment relative to age expectations in the areas of basic attention and concentration, learning and memory and in aspects of frontal executive function involving complex and simple problem solving and flexible thinking.

Dr Hepner concluded that a diagnosis of dementia is warranted Dr Hepner was of the view that considering the history of multiple vascular risk factors, together with the appellant's presentation and performance on testing, the underlying aetiology is most likely vascular dementia. This is a permanent and progressive condition. Further cognitive decline is expected over time, which would be exacerbated in the context of poor control of vascular risk factors.

The assessment report by Community Corrections agreed that appellant likely has dementia of the vascular type. Dr Chew noted a number of risk factors, predominantly the medical conditions of diabetes, hypertension and atrial fibrillation. Dementia is a progressive illness which is likely to get worse as the appellant ages. Dr Chew did not consider that the appellant suffered any major mood or anxiety disorder.

44. Based on that material, her Honour found that she had taken into account the appellant’s present mental concerns when sentencing him. She stated “he undoubtedly will require ongoing medical treatment in custody to manage his conditions”.

45. Her Honour found that the appellant was not contrite or remorseful for his offences for which he stands convicted. He had no insight into the gravity of his conduct.

46. As to the risk of reoffending, her Honour observed that the appellant denied he had any specific sexual attraction to or sexual preoccupation with children or persons with childlike qualities. He had not reoffended since the last offence he committed. A risk assessment test conducted in relation to the appellant determined that he was in the very low risk range of sexual recidivism relative to other male offenders. Another risk assessment tool assessed the appellant as medium to low risk of reoffending. The sentencing judge found that the reality was that the appellant’s age and the sentence that will be imposed upon him makes the likelihood of his reoffending, as a practical matter, very low.

47. Overall, her Honour considered that there was no genuine insight into his offending or the harm that he caused and found that the appellant had no “demonstrated genuine rehabilitation”.

48. Her Honour noted that, the appellant had no criminal record, nor had he incurred any institutional infractions whilst in custody. His good character at the point when his offending started must, however, be of very little weight.

49. A further consideration is that he and his wife had been ostracised by the Spanish community residing in Wollongong. The sentencing judge took into account that, “in a general way”, the gossip and talk amongst the community, as a consequence of the offending, as charged, but this did not entitle the appellant to “any amelioration of the otherwise appropriate sentence”.

50. The sentencing judge took into account the fact that the appellant had no visitors, apart from legal visits, and that his wife had health concerns that affected her ability to attend gaol. This made his custody more onerous and that fact was taken into account.

51. As to general deterrence, her Honour found that it had a significant role to play, given that the appellant has been convicted of a large number of sexual offences against four complainants, even though the appellant had not committed offences for decades.

52. As to specific deterrence, the appellant’s age and confinement in gaol meant that this was not of particular importance.

53. As to sentencing, the sentencing judge took into account that a number of the offences were committed during the one episode or incident. Her Honour stated that, “where a sentence for one offence could comprehend and reflect the criminality involved in another offence within the same episode notional concurrency may be appropriate”. However, her Honour found that:

At the same time it is necessary to ensure that appropriate regard is given to the fact that the appellant committed 27 discrete offences upon four victims across a large number of separate incidents over approximately 15 years and the impression should never be given that there is some kind of discount for multiple offending.

The reality is that the present sentencing exercise is extremely difficult particularly because of the number of serious offences this appellant has committed and his advanced age. Having determined an indicative sentence appropriate in my view to the objective gravity of each individual offence, if I was then to partially accumulate to reflect the repeated nature of the appellant's conduct (even making the sentences for offences committed within the one episode wholly concurrent), the result would be the imposition of a sentence that would be manifestly excessive.

It must therefore be recognised that there will necessarily be a large compromise in the appellant's favour and the mechanism of making a number of indicative sentences notionally concurrent (or partly so) will need to be used to ensure that the aggregation of the individual indicative sentences does not exceed what is called for in all the circumstance. As will be apparent when I shortly announce the indicative sentences and then impose the aggregate sentence, faithful compliance with the totality principle has meant that the appellant has in fact received relatively modest increases for much of his offending.

I am mindful this is the appellant's first sentence of imprisonment and it will be a lengthy one.

I have taken care not to unduly notionally accumulate because of the compounding impact of what will be a long sentence. Each year in gaol has a greater impact on a person than the preceding year particularly for a person of advanced years.

54. Her Honour recognised that the reality of the non-parole period she would fix was that, the appellant may not be alive at the date of the non-parole period arriving, and would “therefore be denied the opportunity to return to the community”.

55. As to the provisions of s 25AA of the Sentencing Act, the sentencing judge stated:

On 31 August 2018 s 25AA of the Crimes (Sentencing Procedure) Act commenced. It states relevantly that a court must sentence an offender for a historic child sexual offence in accordance with the sentencing practices and patterns at the time of sentencing, not at the time of the offence. Further it mandates that a Court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of Courts).

In complying with this section one however must be mindful that it is the maximum penalty applicable to an offence at the time of its commission that is the guidepost - not the maximum penalty which may well have been increased over time. Furthermore a standard non-parole period applicable to an offence at some later point in time, but not existing at the time of the commission of the offence must be ignored. This is potentially important because sentencing patterns and practises existing at the time of the sentencing as opposed to the time of the offending will of course be informed by these legislative guideposts and accordingly care needs to be taken.

56. Finally, as to the fixing of an aggregate sentence, with an aggregate non-parole period that takes into account special circumstances, her Honour found:

Simply put, the aggregate non-parole period I will shortly impose upon the appellant represents the minimum period of actual incarceration justice requires him to serve. To impose any shorter non-parole period than that I will impose would in my view result in a sentence that would be manifestly inadequate.

In fixing the aggregate sentence there will be a finding of special circumstances. The reason for this relates primarily to the fact there has been a degree of notional partial accumulation between the sentences indicated, because this is the appellant's first time in custody and because his age and health will make his time in custody more onerous.

GROUND 1

That there had been a fundamental error of law going to the root of the Appellant/Applicant's trial by reason of the trial judge falling into jurisdictional error by finding that he had no legal basis to discharge a particular juror and as a consequence the Appellant/Applicant did not receive a trial according to law.

57. The appellant contended that the trial judge had fallen into jurisdictional error by mistakenly denying the existence of jurisdiction: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 177; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”) at [72]. It was submitted that the Court below had mistakenly denied the very existence of its jurisdiction, namely, the jurisdiction to discharge a juror under s 53B(d) of the Jury Act 1977 (NSW).

58. The trial judge had denied that jurisdiction when he stated that, in the midst of grappling with a disclosure by a juror that she had legal training, “there can be no legal basis” for discharging the juror.

The Course of the Trial

59. On 11 April 2018, the trial judge empanelled the jury, opening remarks were given by the trial judge and the Crown prosecutor commenced making an opening address when a juror raised a hand. When asked by the trial judge, “What’s the problem?” the juror stated, “I don’t think I can go through this trial”. The remaining jury were excused, the juror was sworn and questions were asked. In the result, the jury were discharged. A further jury were then empanelled on the same day and the trial judge made opening remarks.

60. On 13 April 2018, the Crown prosecutor and defence counsel made opening submissions. The officer in charge was called to give evidence.

61. On 16 April 2018, MO gave evidence.

62. On 17 April 2018, AO commenced to give evidence in chief and a morning tea break was taken. On resumption, his Honour informed counsel, in the absence of the jury, that a juror had not been feeling well at morning tea and wanted to go for a walk, had become ill and did not return until 1:00pm.

63. The trial judge advised that, the Court Officer had indicated the juror had found “it incredibly stressful and doesn’t feel she can go on”. His Honour determined to bring the juror before the Court (at about that same time, his Honour received a note with a medical certificate from the juror). (This juror shall hereafter be referred to as “the juror”).

64. His Honour asked the juror whether she could continue “after today” to which the juror responded:

Yes, I hope i will be, but today was unacceptable for me, it was too emotional for and to [sic] private. From yesterday I was sick, I was thinking it would go away, and I have got high blood pressure, I get blurred vision because of a lot of stress, and this morning I think it culminated. And I said, I visited the doctor. She said: 'Do you need couple of more days?' And I said, 'No I will check from tomorrow how I am going’.

65. The following exchange then occurred between the trial judge and the juror as follows:

JUROR: … She [the doctor] said “do you need a couple of more days?” And I said, “No, I will check from tomorrow how I am going.”

HIS HONOUR: Do you understand there are two more ladies as well. It is difficult.

JUROR: / understand, I am a lawyer and I have great experience and I done legal practice. I am so stressed now, still I did not have lunch, I could not have lunch.

HIS HONOUR: I understand, I understand, it is stressful. I wanted to make sure that you just didn’t want just to go on any more, if you have had enough, if you think you are just not going to be able to do it anymore, to let us know honestly. If you think, I might be okay tomorrow—

JUROR: I think I will be okay tomorrow and I will take some sedatives for my personal preparation to be really fit, all right.

HIS HONOUR: I will let you go for today.

JUROR: Yes.

HIS HONOUR: I am obviously concern[ed] about you.

JUROR: I appreciate that.

HIS HONOUR: I don’t want you to be unwell or highly stressed. If you are, I want you to send me a note saying I really cannot go on.

[Emphasis added.]

66. After some further discussion, there was the following further exchange between the trial judge and the juror:

HIS HONOUR: Sometimes I would rather be somewhere else that is why I tried to warn you at the beginning that it could be difficult. Be that as it may, if you are not able to go on tomorrow—

JUROR: I will be definitely but I needed today because it was too much, too much, too much emotional and I came from similar background and same religion and now it is shocking, really shocking.

67. The trial judge then asked counsel whether there were any further questions for the juror. Neither counsel sought to ask any questions. The following exchange then eventuated:

HIS HONOUR: I think on balance I will let her try to keep going.

CONTE-MILLS: Yes, you Honour.

CROWN PROSECUTOR: Yes.

HIS HONOUR: She probably told us a lot more about herself than we needed to know. I could be wrong, I have feeling that she probably won’t be able to go another two whole complainants and there is still all of your cross-examination to go, but I will have to let the jury go today.

68. The remainder of the jury were then returned to Court. It was explained that one of their number was ill and would not return that day. The jury were asked to return the next day, 18 April 2018.

69. The trial resumed that day. All jurors were present and AO was called to give evidence. Her evidence was completed. MO was recalled for further cross-examination. JO was also called to give evidence in chief. No issues were raised by counsel for the defence on this day, as to the circumstances of the juror on the previous day. The matter was adjourned to 19 April 2018.

70. After some preliminary issues on 19 April, his Honour raised an issue regarding the juror and had an exchange with counsel, as follows:

HIS HONOUR: I got the update about the accused. There’s another issue that I have to raise with you that I hadn’t really focused on. I have to credit my associate with this. Remember then we questioned the juror, and this is on p 117 of the transcript. When I say “we”, I questioned the juror. I don’t want to suggest that any of you did it. And just under point 5, she volunteers this, “I understand I am a lawyer. I have great experience and I’ve done legal practical.”

CROWN PROSECUTOR: Your Honour, I must say, I haven’t had the benefit of listening to it again, but I didn’t hear her such. She had an accent, as I recall. I heard her say something about legal. What I took from it was that she’d had some legal training, or something like that. I didn’t think she said, “I’m a lawyer.”

HIS HONOUR: Likewise, my impression is she had some legal background.

CONTE-MILLS: I think that’s what she actually said, in another country.

HIS HONOUR: Right.

CONTE-MILLS: And that’s not appearing in the transcript.

HIS HONOUR: The issue with it is, I hadn’t realised they’d changed the Jury Act again, so that there is now an exclusion under s 6, then you go to sch 1, and you go to the 5(a) in sch 1, it says, “Persons who are Australian lawyers. The person who is an Australian lawyer, whether or not an Australian legal practitioner, is excluded from jury service.” Now, I thought that we – leaving me out, we’re all in it, but we’re not, apparently.

CONTE-MILLS: We were, for a time.

HIS HONOUR: I thought we were..(not transcribable).. certainly, because my own children have sought to use this as a base and didn't work. But now they could, so I - anyway, the problem it causes, obviously, in the trial, is if she is an Australian lawyer, even if she's not practicing, she shouldn't be on the jury and regrettably, there'd be no alternative but to discharge the whole jury, because it would be a fundamental problem going to the root of the trial.

I can't do that, and I can't question her until the accused is back. I'm hoping that our joint recollection is that her qualifications as a lawyer weren't in Australia, and she's not an Australian lawyer. If that's the case, she's fine to stay, subject to if she's got any other difficulties. Because that was the juror that was missing again this morning. But I have to ask her. I can't let it go on without doing something about it, so now that it's been brought to my attention.

[Emphasis added.]

71. Further, his Honour observed:

HIS HONOUR: Australian lawyer holds an Australian practicing certificate. Providing she’s not an Australian lawyer, then there’s no problem. But I don’t think we should ignore it, because it’s, as I say, a fundamental problem if she is an Australian lawyer. But we can’t do anything, anyway, until the accused comes back, and I understand that won’t be before 1.30.

72. After the luncheon adjournment, the juror returned and further questions were asked. The evidence was not taken under oath.

73. The juror stated she was a foreign lawyer with "ten years overseas experience in commercial and employment law and some - some other stuff". She also said she had done the legal practical training course at St. Leonards in 2015. She said that she was not admitted because it was too stressful for her, too expensive and that she was doing other different jobs. Both counsel questioned her as to her training and experience. She effectively said that she would be eligible for conditional admission in Australia, but in response to defence counsel, said she had not graduated from the College of Law in Australia, but had completed the subjects. The location of her overseas legal qualifications and experience was not entirely clear from her evidence. However, it appeared to have been "before former Yugoslavia".

74. The questioning of the juror revealed:

1. The juror was not admitted as a lawyer in New South Wales or anywhere else. As she was not admitted, she could not hold an Australian practicing certificate.

2. The juror had 10 years’ experience as a lawyer overseas.

3. The juror completed the College of Law course in 2015.

4. The juror had lodged documents for admission and had an expectation her application would be approved and she would be admitted to the practice of law in the Supreme Court. The juror applied to the College of Law for a work experience exception.

5. The juror had no particular knowledge of Australian or overseas criminal law, save for any training at the College of Law, in which she was required to study criminal law. I accept the submission for the Crown that, whatever the training, it was very unlikely that it extended to the issues encountered in a trial such as the one here under examination and that any such training, as may be expected, was confined to basic skills in the practice of law.

75. Subsequently, after the juror retired to the jury room, the trial judge entertained, inter alia, submissions as to whether the juror was excluded from jury service, in consequence of the provisions of cl 5A of Sch 1 of the Jury Act.

76. The appellant’s counsel at trial raised various concerns about the juror. For example, it was mentioned that the juror was “up for admission” and had obtained all of the “education, achievements and knowledge” for the juror to be admitted. A further question raised was whether the juror had told the remainder of the jury that she was a lawyer and whether the jury may attach particular “credibility” to anything the juror may state in the jury room.

77. Counsel for the appellant in the proceedings stated that trial counsel was “effectively exploring the discharge of that juror and consequently the jury”. However, as the Crown correctly submitted, defence counsel in the trial did not make an application for the trial judge to discharge the juror.

78. After making the submissions at trial, to which I have referred, the following exchange occurred between defence counsel and the trial judge:

HIS HONOUR: I can't just discharge her without having reason under the Act, so if someone's qualified and willing to continue, I don't just get to discharge them because we don't like the sound of them. You know, it's got to be something more than that. So I don't think that I've got a legal basis for discharging her at this stage. And even if we thought let’s be safe, and call her Australian lawyer, then I'd have to discharge the whole jury.

CONTE-MILLS: The concern, as I've previously raised, is she would have all the knowledge there for her to become - it's just a matter of signing a paper and paying some money. She’s got all the knowledge. She knows about criminal law. She knows about let's potentially the directions the juries will be given. She knows beyond reasonable doubt. All of that. And whether she has indeed told the jury, and whether they are swayed by her to pay more attention to her.

HIS HONOUR: But it wasn't that long ago lawyers were allowed to be on juries.

CONTE-MILLS: Yes.

HIS HONOUR: And obviously the government's decided, for whatever reason, that wasn't a good idea, and they've changed their mind. As I say, if she was just some young College of Law student at the end of their College Law, but not admitted, they'd still be permitted to be on the jury. So I need a legal basis for discharging her, not just a - it's in the vibe sort of thing.

CONTE-MILLS: That's what my instructor was just saying, it's the vibe.

HIS HONOUR: The vibes might not be great, but-

CONTE-MILLS: Yes. The Castle is not case law.

[Emphasis added.]

Consideration

79. The appellant contended that there was a jurisdictional error “going to the root of the trial process, such that there was no trial according to law, and thus, there had been a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act. As earlier mentioned, it was contended that his Honour denied his jurisdiction to discharge the juror, under s 53B(d) of the Jury Act, by finding that he did not have ‘a legal basis for discharging the juror” and further, that “I need a legal basis for discharging her”.

80. Part 7A of the Jury Act deals with the discharge of jurors. Section 53A(1)(a) provides for the mandatory discharge of a juror if it is found that the juror was mistakenly or irregularly empanelled because, inter alia, the juror was excluded from jury service. Schedule 1 of the Jury Act prescribes the classes of persons excluded from jury service. One such excluded category is an “Australian lawyer” (see cl 5A of Sch 1).

81. It was common ground (and correctly so) that the juror did not fall within the meaning of the expression “Australian lawyer”, by virtue of s 6 of the Legal Profession Uniform Law 2014 (NSW) (“the LPUL”), which defines an Australian lawyer as, “a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction”. Jurisdiction is defined in the LPUL as “a State of the Commonwealth, the Australian Capital Territory or the Northern Territory of Australia” (see s 6).

82. Section 53B of the Jury Act reposes a discretion in the trial judge to discharge a juror. Section 53B(d) provides that the discretion may be exercised in a trial if:

(d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror.

83. In my view, the appellant has failed to demonstrate jurisdictional error upon the basis articulated in this ground of appeal, as developed in the submissions, with respect to the same.

84. When attention is directed to the course of the trial, from the intimation by the juror as to her legal training, through to the statements of the trial judge relied upon by the appellant to demonstrate a denial of jurisdiction, namely, the Court’s need for a “legal basis” for discharging the juror, it is plain that his Honour’s remarks were directed to the absence of a mandatory statutory direction to discharge the juror, as found in s 53A of the Jury Act (because, as conceded by the appellant, the juror was not an Australian lawyer), rather than the limits of his discretion under s 53B(d).

85. In my view, his Honour was aware that he had a discretionary power under the Jury Act to discharge a juror who was not otherwise excluded from jury service, in consequence of the operation of s 53A and Sch 1 of that Act. This is confirmed by his Honour’s observation that, “I can’t just discharge her without having reason under the Act”. Further, he had, in fact, a short time earlier, exercised such a discretion in discharging a juror (and the jury) (although it is not entirely clear if s 53B(d) of the Jury Act was engaged).

86. The appellant also advanced a submission that the trial judge had engaged in jurisdictional error by “at least disregarding the limits” of his power under s 53B(d) of the Jury Act.

87. Accepting that it is undesirable to mark out the bounds of jurisdictional error, as opposed to non-jurisdictional error (see Kirk at [71]), it would appear that this contention (which was not developed) was that the trial judge disregarded the nature or limits of his power. Based on the aforementioned analysis of the approach adopted by the trial judge, that submission cannot be accepted.

88. The appellant further submitted that the trial judge also erred in the exercise of “his jurisdiction” by making no inquiry of the juror as to whether she could bring an impartial mind to the case, having regard to her legal training and other aspects of her evidence regarding that topic.

89. The appellant submitted:

1. The reason a lawyer is excluded by legislation from serving on a jury and, if irregularly empanelled, becomes subject to mandatory discharge pursuant to s 53A(1)(a) of the Jury Act is because of the potential influence, deference and distraction other jurors may be exposed to when one of their number is a lawyer or has advanced legal training. Put another way, there is danger a jury may be influenced or act on a lawyer juror’s opinion about evidence and the law undermining the instructions of the trial judge.

2. In the circumstances of the appellant, the evidence revealed the lawyer juror was experienced, albeit in a foreign jurisdiction, had completed the College of Law and was on the cusp of formal admission as a practitioner of the Supreme Court of NSW. There was the appearance and practical danger the juror would use her training and knowledge of the law to influence other members of the jury in such a way that other jurors would defer to her and not bring an independent mind to the evaluation of the evidence. These were matters relevant to the exercise of jurisdiction in s 53B(d) of the Jury Act.

90. These submissions travel well beyond the stated ground of appeal but, in any event, they should be rejected for the following reasons:

1. The defence counsel at trial did not make, as earlier mentioned, an application for the trial judge to discharge the juror.

2. The defence counsel never sought leave, when she had the opportunity to do so, to ask whether the juror had any expertise in the type of directions the jury were likely to be given in the trial or what knowledge of, or experience in, Australian criminal law she actually possessed. The juror was certainly never asked whether she had told the rest of the jury about what legal directions the Judge might give in the present case.

3. There would have been nothing improper, in any event, in the juror mentioning legal directions to the remaining jurors, providing the jury followed (as they were told by the trial Judge they were bound to do) his legal directions. In the absence of evidence to the contrary, this Court is bound to apply the presumption that the jurors did follow the legal directions of the trial Judge (see Gilbert v The Queen (2000) 201 CLR 414 at [31] (per McHugh J)).

GROUND 2

That the aggregate sentence was manifestly excessive per se and because a number of indicative sentences were manifestly excessive inflating the aggregate sentence.

91. The appellant contended that the sentence imposed by the sentencing judge was manifestly excessive.

92. Whilst it was accepted that the appellant was convicted of “very serious sexual assaults”, given the age of the complainants and the objective level of criminality, it was contended that, when viewed globally or in the context of the indicative sentences imposed, the sentence imposed was “unreasonable” or “plainly unjust”, upon a number of bases.

91. First, the appellant is 80 years of age and has no criminal antecedents.

92. Secondly, the appellant remained in very poor physical health, as described in the sentencing judgment including, chronic heart failure, chronic renal failure and type II diabetes.

93. Thirdly, whilst the sentencing judge found no psychiatric or psychological condition suffered by the appellant and no history of mental illness, Dr Reutons, in her report of 6 May 2018, had diagnosed the appellant with “minor neurocognitive disorder”. Later, Dr Sidorov, in a report, dated 18 November 2018, found the appellant’s neurocognitive disorder to have deteriorated such that a diagnosis of dementia was appropriate (see the report of Dr Chan, consultant psychiatrist, dated 14 March 2019).

94. Fourthly, these medical conditions would be exacerbated by the appellant’s limited educational attainments and a lack of English language competency.

95. Fifthly, the appellant will have to be medically managed in custody, as well as be the subject of ‘limited association’ or segregation.

96. Sixthly, the appellant and his wife had become “poison” in the estimation of the local Spanish community.

97. As a general proposition, ill health will be a matter capable of mitigating punishment only where it appears that imprisonment will be a greater burden on an offender, by reason of an offender's state of health or, where there is a serious risk of imprisonment having a serious adverse effect on an offender's health (R v Wilson (No 5) [2018] NSWSC 1077).

98. It is submitted that, although her Honour was mindful of the two matters that self evidentially went to the issue of the appellant’s time in custody being more onerous, namely, the appellant's poor physical and deteriorating mental health and segregation, her Honour, by the length of the sentence imposed, fell into what may be described as Dinsdale v R error That is, the sentence was simply too severe (see Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54).

99. The appellant also submitted that there was an error in the “structure” of the sentences, as demonstrated by the indicative sentences imposed by the sentencing judge as follows:

1. A scrutiny of the indicative sentences concerning counts 1, 3 and 4, does not indicate they were excessive. Count 1 concerned the complainant MO and attracted an indicative sentence of 2 years and 6 months, that is, half of the maximum sentence available for that offence. The complainant was 9 years of age at the time of the offence. The appellant entered the bedroom of MO and pressed his body against her and touched MO on her vagina outside her underwear. Counts 3 and 4 attracted 2 years imprisonment, respectively, and concerned touching of the breast and vagina outside her clothing.

2. Count 7, concerning JO, was an episode of digital penetration and attracted an indicative sentence of 3 years and 10 months, in contra- distinction to a more serious episode of digital penetration in count 2, which attracted a lesser sentence of 3 years and 2 months.

3. Count 9 attracted an indicative sentence of 16 years. The appellant submitted that, this count was extremely serious. However, it was contended, in contradistinction, count 10, involving anal penetration, was an objectively more serious offence. That offence attracted only 10 years imprisonment. Also, in respect to count 12, which attracted a 15 year sentence, in contradistinction to count 9, which involved the same style of sexual assault, for which a 16 year sentence was imposed.

4. Count 18 concerned PO, aged 6, and an act of digital penetration that attracted 3 years and 6 months imprisonment, in contradistinction to count 2 that attracted 3 years and 2 months for an act of digital penetration.

5. Count 21, concerning AO, attracted 2 years and 3 months for touching the vagina of AO on the outside of her underwear. The same sexual assault on MO, in count 1, attracted a sentence 3 months longer.

102. When proposing that the exercise of a sentencing direction resulted in a sentence which was manifestly excessive, the appellant must be taken as contending the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [25]. This has to be established in a context where there is no single correct sentence and where judges, at first instance, are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Vuni v R [2006] NSWCCA 171 at [33] per Hoeben J (as his Honour then was, with Tobias JA and James J agreeing); Markarian at [27] and Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman J and R A Hulme J agreed).

103. Reference should also be made to the judgment of R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:

[443] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

(See also Hughes v R [2018] NSWCCA 2 at [86]).

104. It must also be stated at the outset of the consideration of this ground that indicative sentences are not themselves amenable to appeal. It is the aggregate sentence to which a ground of appeal of manifest excess relates. However, indicative sentences can be taken into account when considering the whole of the remarks on sentence. As Bathurst CJ said in Kerr v R [2016] NSWCCA 218 at [113]-[114]:

[113] The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59]. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29.

[114] As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive.

105. It should also be noted that, the appellant does not impugn the conclusions reached by the sentencing judge, as to the objective seriousness of the 27 offences, with respect to which the appellant was convicted.

106. Given that position, it is unnecessary to repeat in this consideration, the essential components of the judgment below, as to the objective seriousness of the offence, given the extensive summary provided earlier in this judgment. It is sufficient to make broad observations as to the objective seriousness of the offending (knowing his Honour also made findings as to aggravation).

107. The offences involved extreme examples of sustained historic child sexual offending. Over the course of 15 years, the appellant preyed upon and repeatedly sexually offended four different female children, who were his nieces. The age of the victims ranged from 3 to 13 years. The offending was brazen, deliberate, determined and, at times, particularly disturbing. The offences on the indictment were not isolated and variously involved coercion, threats, manipulation and aggression.

108. Courts 7-10 involved JO being vaginally and anally raped by the appellant, and being digitally penetrated, and forced to perform fellatio when she was only three years old. Courts 12 and 13, similarly involved JO being vaginally and anally raped when she was only 4 to 5 years old. Courts 18 and 19 involved PO being subjected to penile, vaginal and digital penetration when she was only 6 years old.

109. Each offence occurred in the complainants’ home by a person the complainants were entitled to trust. Following the first few years of offending, the appellant was confronted with allegations made by MO, who made complaints to her parents, that the appellant had been sexually interfering with her. Following this complaint, the appellant left the family home for several years. However, he eventually reconnected with the family, only to continue his offending for many more years, armed, no doubt, with the belief that his offending would be largely unimpeded, even if a complaint was made.

110. Particular submissions were made by the appellant as to consistency in the indicative sentences. Notwithstanding the contention of the appellant that, this aspect of the argument advanced under ground 2 of the appeal was directed to the ‘structure’ of the sentence, there is considerable force in the submission of the Crown that this aspect of the ground is not amendable to appeal as it is a mere challenge to the respective indicative sentences.

111. I will briefly attend to the appellant’s submissions.

112. In any event, the challenge to the indicative sentences advanced by the appellant simply cannot be sustained for the following reasons:

1. The indicative sentences for counts 1, 3 and 4 are not excessive. The appellant did not seek to impugn the indicative sentence for count 15 as being excessive but the circumstances of that offending are similar to those of count 1. The indicative sentence for each count is the same. As to the indicative sentence for count 1, when compared to counts 3 and 4, it may be observed that, the conduct of the appellant in each case was similar but MO was 3 to 4 years older and situated in the kitchen when the offences in counts 3 and 4 were committed. It may also be noted, in that respect, counts 3 and 4 occurred in the same episode, in which the appellant touched MO’s breasts and vagina, respectively, through her clothes.

2. The appellant made a number of submissions to the effect that the indicative sentences were disparate and pointed to five examples in this respect, none of which, in my view, were made out, for the following further reasons:

1. The higher indicative sentence for count 7 (when compared to count 2) is justified on the basis that it involved digital penetration committed on JO when she was only 3 years old. During this episode, JO was also subjected to forced fellatio, penile/vaginal penetration and penile/anal penetration (counts 8 to 10 respectively). Court 2 was an instance of digital penetration, committed when MO was 9 years old and was a standalone count.

2. The appellant impugned the indicative sentence of 16 years for count 9, when comparison was made with count 10. The difference in penalty between 16 years imprisonment for count 9 (penile/vaginal penetration) and 10 years imprisonment for count 10, is readily explicable upon the basis of the different maximum penalties applicable to each count – life imprisonment for count 9, compared to 14 years imprisonment for count 10. I do not accept, as a matter of principle, the submission of the appellant that penile/anal intercourse (count 10) is more serious than penile/vaginal intercourse (count 9) because it is erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy, so as to determine their objective seriousness: Doe v R [2013] NSWCCA 248 at [54]. Both offences were, as the sentencing judge observed, extremely serious.

3. The appellant also took issue with the indicative sentence for count 9 compared to count 12. It is true that both the offences involved penile/vaginal penetration, attracting a maximum penalty of life imprisonment (carnal knowledge of a girl under 10 years of age) and there is a difference in the indicative sentences, as between 16 years for count 9 and 15 years for count 12. However, it appears to me that the distinction drawn by her Honour was justified on the basis of the age differential of the victims at the time of each offence (3 years as opposed to 4 to 5 years of age). Further, count 9 was overall, more objectively serious because of the episode in which count 9 occurred, namely, count 7 to 10. It may also be noted that the trial judge regarded the buggery count in the former episode (count 10) as slightly more serious than the buggery count in a later episode (count 13) and thus, imposed respective indicative sentences, which differed by one year, namely, 10 years for count 10 and 9 years for count 13.

4. The challenge to the indicative sentence imposed with respect to count 13, when compared to count 2, may, in my view, be again explained by the age differential; PO was 6 at the time, when compared to the age of MO, namely, 9 years.

5. Lastly, the appellant submitted that count 21, concerning AO, attracted 2 years and 3 months for touching the vagina of AO on the outside of her underwear, whereas the same sexual assault against MO, in count 1, attracted a sentence that was 3 months longer. It is true that both count 21 and count 1 were offences of indecent assault on a girl under 16 years of age, but again, the principal distinction justifying the differential is the age of the complainants. For count 1, the complainant was 5 years old and for count 6, the complainant was 6 years old.

113. Even when the reasons for sentence are looked at as a whole, I do not consider that the appellant’s challenge to the indicative sentences imposed by the sentencing judge can be sustained. I accept the submission of the Crown that the sentencing judge applied a clear and principled logic in distinguishing between the counts.

114. There remains in the balance on the question as to whether the sentence was manifestly excessive, the issue of the subjective factors referred to by the appellant. There can be no doubt that the sentencing judge was troubled by this consideration, particularly, having regard to the age of the appellant and his various health concerns, which were summarised in her reasons for sentence and attracted particular attention in the submissions for the appellant under this ground.

115. It may be accepted that these are significant subjective features in the appellant’s case. However, when proper weight is given to the objective gravity of the offences, the offending by the appellant, the absence of remorse by the appellant and allowing for special circumstances, as the sentence judge did, it may not be concluded, in my view, that the sentence imposed upon the appellant, having regard to the matters I have considered in dealing with this ground, may be found to be manifestly excessive.

116. Ground 2 is rejected.

GROUND 3

That having regard to the COVID 19 pandemic and its relationship to the applicant’s advanced age, poor health status and custodial arrangements the sentence is manifestly excessive. (The applicant seeks leave to introduce fresh evidence on this ground of application for leave to appeal)

117. The appellant was given leave to amend the application for leave to appeal to bring in ground 3. As earlier mentioned, the appellant also sought to adduce the evidence of Joseline Quinones, which evidence was objected to by the Crown, save as to resentencing.

118. The appellant relied upon the recent decision of this Court in Scott v R [2020] NSWCCA 81 at [163] (per Hamill J, with whom Brereton JA and Fagan J agreed) to contend that the evidence should be received as fresh evidence in order to avoid a miscarriage of justice.

119. In substance, the appellant contended that the Court should grant leave to appeal against sentence on this ground because the circumstances of COVID-19 were such that the Court would conclude that the appellant suffered an additional burden by his imprisonment. This factor, when taken into account in sentencing, made the sentencing imposed on the appellant manifestly excessive.

120. The appellant’s advanced age and poor health meant that he came under a category of vulnerable inmate, if COVID-19 should infiltrate the prison system and, in any event, it meant that he would be classified as an “at risk” inmate and subject to additional isolation, over and above the difficulties encountered by inmates arising from prison lockdowns, consequential upon the advent of COVID-19. Further, it was submitted that inmates generally, and the appellant, in particular, because of his age and health, suffered from anxiety or “a state of uncertain suspense” concerning the potential for transmission of the disease in prison.

121. After restating the age and health conditions of the appellant, the salient features of Ms Quinones evidence, so far as it went to the instructions of the appellant, as to his incarceration of Hunter Correctional Centre, were as follows:

1. That there are no prison cells at the Hunter Correctional Centre and that all inmates share an open plan style accommodation with 25 other inmates, and currently there are approximately 400 other inmates.

2. That the gaol pods have either, 2, 3, or 4 inmates each and form part of the 25 open-plan cluster.

3. That since notification of COVID-19 by the authorities, he has been restricted as to his usual movements.

4. That prior to the pandemic the appellant usually enjoyed some exercise in the yard but is no longer allowed outside. He is very limited as to where he can walk or go.

5. The authorities at the facility have provided gloves and some sanitising liquid but no masks. According to the appellant, the staff are not wearing any masks.

6. He has been in isolation for the previous month and stated that he is not in isolation alone but has been identified as an "AT RISK" inmate and, therefore, has been in isolation with those inmates who are also classified as "AT RISK".

7. The appellant stated that he has not been tested for COVID-19 and is not aware of any testing being carried out inside the Hunter Correctional Centre at the moment.

8. That the appellant has been having trouble contacting his wife by telephone and that, since the pandemic, the calls seem to be cutting out on a regular and constant basis.

122. Ms Quinones also deposed that she had a telephone call with Mr Troy Jurd, governor of the Hunter Correctional Centre, who informed her of the following:

1. He is unable to send any documents pertaining to formal gaol procedures as those documents would need to be obtained from “the legal department”.

2. Hunter Correctional Centre operates unlike other prisons, in a “dormitory-style” accommodation. Hence, it was considered a hotspot for COVID-19 and rapid measures were put in place to ensure inmate safety.

3. Hunter Correctional Centre acts on the advice of Justice Health.

4. The prison houses 400 inmates separated into 4 blocks.

5. Inmates over 65-years of age or inmates with health issues have been moved into their own block “D-block” and segregated from all other areas.

6. The appellant is classified as an “at-risk” inmate due to his age and health.

7. D-block comprises of 25 inmates in total who are isolated from the rest of the gaol, although they are in isolation for 24-hours a day – they are together in this block.

8. The block is large in size and has an outdoor space for exercise. Each inmate has their own private cubicle.

9. No personal visits are allowed. No one may enter the prison unless it is essential, that is, doctors and staff only.

10. This procedure has been in place for an estimated 3 weeks.

123. Before moving on to an issue raised by the Crown in this respect, it may be noted that the Crown relied, for resentencing purposes, upon the affidavit, as earlier mentioned, of Mr Jones, an employed solicitor with the NSW Office of the Director of Public Prosecutions. Mr Jones provided a summary of the response by Corrective Services NSW (“Corrective Services”) to COVID-19, as conveyed by Mr Jeremy Tucker, the Director of Corrections, Strategy & Executive Services at Corrective Services. As mentioned, that summary was provided for the purposes of resentencing, but will provide context, given the issues raised by the appellant. The summary statement provided by Mr Jones was as follows:

1. Corrective Services has developed and implemented comprehensive plans to manage the COVID-19 pandemic. The plans apply to all correctional centres across the state and are updated to respond to changing circumstances and updated advice from health authorities and Government.

2. In partnership with the Justice Health and Forensic Mental Health Network, Corrective Services has taken pre-emptive steps to minimise the key risks associated with COVID-19 transmission to staff, stakeholders and individuals managed under the orders of the court in custody and community.

3. Corrective Services coordinates its COVID-19 efforts using subject matter experts both internal and external to the agency including guidance and directives from NSW Health and the Commonwealth.

4. Comprehensive measures are aimed at minimising transmission through screening, reducing movements of staff, external visitors and inmates into correctional centres, reducing movements to and from courts, health education, hygiene measures and protocols for managing those with exposure to COVID-19. This has included placing restrictions on visitors to correctional centres.

5. New receptions and offenders transported by NSW Police to correctional centres or Corrective Services court cells are screened for symptoms with operational and individual clinical decisions informed by advice from Justice Health.

6. The Corrective Services COVID-19 Service Delivery Plan provides a high level overview of critical steps to ensure the safe and secure operation of correctional centres, court cells and offender movements as well as key issues relating to the management of offenders in the community. It supplements existing business continuity plans and policies aimed at promoting safety, health and wellbeing. The delivery plan is dynamic and updated as required.

7. The Commissioner has issued a number of Commissioner Instructions to staff to communicate key changes in practices to address emerging issues or areas of concern in response to the COVID-19 pandemic.

8. As at 28 April, no inmates have been confirmed COVID-19 positive nor have any Corrective Services correctional centre staff tested positive.

124. No evidence was advanced by either party as to the commencement or origins of the pandemic. However, it is clear that, if that manifestation of the virus corresponded with a report by China to the World Health Organisation Country Office in China in December 2019, the health and related issues associated with COVID-19 had not manifested themselves at the time of the sentencing of the appellant on 7 June 2019.

125. There are three essential difficulties with the appellant’s submissions in this respect, which are fatal to this ground.

126. First, the evidence sought to be led by the appellant is not fresh evidence, in the sense that there was any material relating to COVID-19 that was existing at the relevant time, the import of which was not known or not fully appreciated (see the discussion of authority below]). Thus, as a matter of general principle, the evidence would not be admissible in this appeal. As Adamson J (with whom McCallum JA and Johnson J agreed) recently stated in Borg v R; Gray v R [2020] NSWCCA 67 at [46]:

[46] While this Court has the flexibility to receive new evidence where it is necessary to do so in the interests of justice, there are limits to the circumstances in which this can occur: Betts v R (2016) 258 CLR 420; [2016] HCA 25 . Otherwise the general principle is as stated in Douar v R [2005] NSWCCA 445; (2005) 159 A Crim R 154 where Johnson J (McClellan CJ at CL and Adams J agreeing) said at [56]:

“The review of a sentence in the light of subsequent events is the proper province of the Executive Government and not of this Court: R v Munday (1981) 2 NSWLR 177 at 178; R v Goodwin (1990) 51 A Crim R 328 at 329 –330; R v Many (1990) 51 A Crim R 54 at 62; R v Fordham (1997) 98 A Crim R 359 at 377 –379; R v Willard (2001) 120 A Crim R 450 at 454 –5.”

127. Secondly, it would seem that the appellant contended that, notwithstanding the terms of the ground itself, that the evidence may be received on the application for leave by appeal as new evidence, that is, as an exception to the general rule (as stated in the judgment of Johnson J in Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [56]).

128. In that respect, the appellant placed reliance on Scott v R [2020] NSWCCA 81, in which Hamill J (with whom Brereton JA and Fagan J agreed) stated at [163]:

[163] The respondent objected to the evidence and submissions being relied on as “fresh evidence” because it arose after sentence was imposed and was properly within the province of the executive government: cf R v Munday [1981] 2 NSWLR 177 at 178; Betts v R (2016) 258 CLR 420; [2016] HCA 25 at [2], [11]. However, there are exceptions to the general propositions established by the cases relied on by the respondent: see, for example, R v Abbott (1985) 17 A Crim R 355, R v Smith (1987) 27 A Crim R 315, R v Goodwin (1990) 51 A Crim R 328 and R v Ehrenburg (Court of Criminal Appeal (NSW), 14 December 1990, unrep). In Betts v R, the High Court, in affirming the general propositions concerning the admissibility of fresh or new evidence in sentencing appeals, observed at [10]:

None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.

129. It may be observed that similar issues to those raised in this matter, visa via COVID-19, were raised in the sentence appeal in Scott. However, the Court was not required to consider the application of those principles because a conclusion had been reached that the sentence imposed was, in contrast to the present matter, manifestly excessive. Rather, the evidence as to the implications of COVID-19, on sentencing the appellant, was taken into account for the purposes of re-sentencing.

130. In any event, the Crown was correct to submit that the authorities referred to in the passage from Scott, extracted above, did not provide a basis for the admission of new evidence on the implications of COVID-19 on sentencing, in the present matter, for the following reasons:

1. In R v Abbott (1985) 17 A Crim R 355, the Court accepted that evidence as to the subjective background of the applicant, which had not been put before the sentencing judge, was not fresh evidence but may be admitted into the evidence upon the basis that the appellant had not been competently represented at the sentencing proceedings. No such issue arises in this case.

2. In R v Smith (1987) 27 A Crim R 315 at 316, King CJ (with whom Cox and O’Loughlin JJ agreed) recognised that the proper purpose for fresh evidence, on an appeal against a sentence, was to bring before the Court facts which were in existence at the time of the imposition of the sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge, so as to put them in a new light. In this matter, it was held that evidence was admissible on the appeal as to the appellant’s diagnosed condition of Acquired Immunodeficiency Syndrome (AIDS) on the basis that the evidence explained “the full extent and implications of the appellant's condition of health which existed at the time of sentence”. The Court held that the events occurring since the sentence were admissible to show the extent and implications of the condition of health, which the appellant was in when he was sentenced including, specifically, the implications of the AIDS condition. In other words, the Court seemed to hold that the evidence as to AIDS gave greater understanding to the evidence of the health condition of the appellant, as adduced at first instance. Those circumstances have no counterpart in this case as it is not alleged that COVID-19 had any bearing upon his health conditions of the appellant as taken into account at the sentencing decision. Nor was the third ground argued on such a basis.

3. In Goodwin v R (1990) 51 A Crim R 328, Hunt J (with whom Grove J agreed) dealt with an application to receive additional material on appeal of a psychiatric character based upon a similar contention to that advanced in Abbott, namely, that the representation at the sentencing hearing was incompetent. The material was rejected because it did not comply with the test in Abbott. His Honour noted that there was cross-examination before the sentencing judge, which indicated that the legal representative for the applicant knew that the applicant had been having ongoing psychiatric treatment. Insofar as the additional material related to the applicant’s circumstances since he was sentenced, his Honour held that the material should be placed before the Executive Government, whose province it is to review the sentence imposed in the light of such material (at 330).

4. The case of R v Ehrenburg (Unreported, Court of Criminal Appeal (NSW), 14 December 1990) does not assist the present case as there was a concession to receive fresh evidence.

5. In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], the High Court held that, as a general rule, the appellate court’s assessment of whether some other sentence was warranted in law was to be made on the material before the sentencing court and any relevant evidence of the offender’s progress towards rehabilitation in the period since the sentencing hearing. For the purposes of that assessment, an offender was not permitted to run a new and different case. The Court held the general rule did not deny the Court flexibility to receive new evidence where it was necessary to do so to avoid a miscarriage of justice (at [2]).

In proceedings before the NSW Court of Criminal Appeal concerning a sentencing appeal, the Court had refused to receive the reports of a psychiatrist and a psychotherapist, holding that the sentencing hearing had been the occasion to address those matters (see at [4]). The High Court rejected (at [8]) the contention that, as a general rule, the appellate court, when exercising its sentence discretion, was not confined to the material before the sentencing court as contrary to principle. However, that conclusion, it was found, did not dispose of the appellant’s narrower case that, in the particular circumstances of the case, the refusal to take into account the new evidence casting light on the causes of the applicant’s offending, resulted in a miscarriage of justice (see at [8]).

The Court ultimately concluded as follows (at [59]):

The case that the appellant submits the interests of justice required the Court of Criminal Appeal to take into account in the exercise of its sentencing discretion is inconsistent with the case that was made before Judge Toner. Had the appellant sought to challenge Judge Toner’s finding of the cause of his offending on the hearing of his appeal in the Court of Criminal Appeal, it is accepted that Dr Nielssen’s evidence may properly have been rejected because it was not fresh evidence. As earlier explained, there is no principled reason for holding that a finding that was not open to challenge on the appeal is susceptible of challenge on new evidence in the event the appellate court comes to consider re-sentencing. The appellant’s case before Judge Toner was not that his ingestion of DMT had significantly contributed to his offending. The forensic choice that was made was to accept responsibility for the offences. Nothing in the new evidence supports the submission that the Court of Criminal Appeal’s refusal to permit the appellant to run a different case before it has occasioned a miscarriage of justice.

131. Here, the evidence of COVID-19 was directed to the additional burden that the appellant may suffer in custody due to his age and health, a factor (in terms of age and health) which was given considerable weight by the sentencing judge. The new evidence relied upon by the appellant may not be utilised to impugn the sentencing judgment which is not otherwise susceptible to challenge on the manifest excess grounds. There is no challenge to the sentencing judge’s assessment of the subjective factors and I have found that the sentence imposed was, even having regard to a strong subjective case, not open to challenge on a manifest ground.

132. The third and related consideration then is that, this is not a case where the receipt of the material in question may have impacted upon the sentence imposed upon the appellant. This is not a case where a comparatively short sentence may have been affected by new evidence of an additional burden which fell upon the appellant in the corrections system. Here, as I have found, the nature of the offences and the offending are of such seriousness that, even if substantially greater weight were given to these subjective factors of age, infirmity of health and additional custodial restrictions such as limitations on contact and exercise due to the effects of COVID-19, no different sentence would properly follow.

133. For completeness, I note that the evidence before the Court from both parties, suggested that, despite initial fears, the prison system has not been the source of any outbreaks of COVID-19, such as the type that has occurred, for example, in aged care facilities. It may be accepted that the appellant would be anxious as to the present circumstances but the risk which he faces are moderated by the controls introduced by Corrective Services and the vigilant screening of staff serving prisons.

134. I would reject the new evidence save to address the question of leave to appeal with respect to ground 3.

135. This ground is rejected.

Conclusion

136. In all the circumstances, I would dismiss the conviction appeal.

137. I would refuse leave to appeal with respect to ground 2.

138. I would grant leave to bring ground 3, given the nature of the issues raised, but otherwise dismiss the appeal.

ORDERS

139. I propose the following orders:

1. Grant leave to appeal with respect to ground 3 of the application for leave to appeal against sentence.

2. Dismiss the appeal.

140. HARRISON J: I agree with Walton J.

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Annexure A (274133, pdf)

Amendments

25 May 2020 - Annexure A - typographical error rectified

26 May 2020 - [131] - typographical error rectified

28 May 2020 - [15] - pseudonym applied

Decision last updated: 28 May 2020