Carr v R

[2020] NSWCCA 214

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Carr v R [2020] NSWCCA 214

Hearing dates:

9 June 2020

Decision date:

26 August 2020

Before:

Johnson J at [1]
Harrison J at [68]
Hamill J at [69]

Decision:

1. Leave to appeal granted.

2. Appeal against sentence dismissed.

Catchwords:

APPEAL - sentence - applicant pleaded guilty to sexual offences committed against his daughter - aggregate sentence of imprisonment for eight years and six months with non-parole period of five years and six months - grounds of appeal asserting that insufficient weight given on sentence to various factors and sufficient regard not paid to other factors - no claim that sentence manifestly excessive - approach to appeal involving challenges to weight given to factors on sentence - error not demonstrated - appeal dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Criminal Appeal Act 1912

Cases Cited:

AK v R [2016] NSWCCA 238

Alvares v (2011) 209 A Crim 297; [2011] NSWCCA 33

Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Burrows v R [2017] NSWCCA 45

Hanania v R [2012] NSWCCA 220

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mun v R [2015] NSWCCA 234

Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Carr (a pseudonym) [2019] NSWDC 805

R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56

Tuite v R [2018] NSWCCA 175

ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132

Texts Cited:

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Category:

Principal judgment

Parties:

Stephen Carr (a pseudonym) (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr AG Rogers (Applicant)
Ms M England (Respondent)

Solicitors:
Mitry Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/348422

Publication restriction:

---

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

---

Citation:

R v Carr (a pseudonym) [2019] NSWDC 805

Date of Decision:

27 November 2019

Before:

His Honour Judge Haesler SC

File Number(s):

2018/348422

Judgment

1. JOHNSON J: By Notice of Application for Leave to Appeal filed on 1 April 2020, the Applicant, Stephen Carr (a pseudonym), seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Wollongong District Court on 27 September 2019 for a number of child sex offences.

2. The Applicant is referred to by a pseudonym as the use of his real name would identify the victim, the daughter of the Applicant. In sentencing the Applicant in the District Court, his Honour Judge Haesler SC used the same pseudonym: R v Carr (a pseudonym) [2019] NSWDC 805. A similar approach will be taken in the description of the Applicant in the present judgment. The victim is entitled at law not to be identified in the judgment of the Court: s.578A Crimes Act 1900. She will be referred to by the pseudonym “Emma” in accordance with the approach of the sentencing Judge.

The Aggregate Sentence, Indicative Sentences and the Offences

3. The Applicant was sentenced to an aggregate term of imprisonment of eight years and six months comprising a non-parole period of five years and six months commencing on 26 September 2019 and expiring on 25 March 2025 with a balance of term of three years commencing on 26 March 2025 and expiring on 25 March 2028.

4. The following table identifies the offences and maximum penalties for those offences, together with the indicative sentences nominated by the sentencing Judge for the purpose of s.53A Crimes (Sentencing Procedure) Act 1999:

Count	Offence	Maximum Penalty	Indicative Sentence
Count 1	Between 1 January 2000 and 31 December 2000, aggravated indecent assault of a person under 16 years of age (11 or 12 years) contrary to s.61M(1) Crimes Act 1900	Imprisonment for seven years	11 months’ imprisonment
Count 2	Between 1 January 2000 and 31 December 2000, incite a person under 16 years of age (11 or 12 years of age) to commit an act of indecency in circumstances of aggravation (being under the authority of her father and carer) contrary to s 61O(1) Crimes Act 1900	Imprisonment for five years	Imprisonment for one year and four months
Count 3	Between 1 January 2000 and 31 December 2000, aggravated indecent assault upon a person under 16 years of age (11 or 12 years) contrary to s.61M(1) Crimes Act 1900	Imprisonment for seven years	Imprisonment for one year and four months
Count 4	Between 1 January 2000 and 31 December 2000, incite a person under 16 years of age (11 or 12 years) to commit an act of indecency in circumstances of aggravation (being under the authority of her father and carer) contrary to s 61O(1) Crimes Act 1900	Imprisonment for five years	Imprisonment for 11 months
Count 5	Between 1 January 2000 and 31 December 2000, aggravated indecent assault of a person aged under 16 years (11 or 12 years) contrary to s.61M(1) Crimes Act 1900	Imprisonment for seven years	Imprisonment for two years and eight months
Count 6	Between 1 January 2000 and 31 December 2000, attempting to have sexual intercourse with a person between the ages of 10 and 16 years (11 or 12 years) whilst under the authority of her father and carer contrary to ss.66C(2) and 66D Crimes Act 1900	Imprisonment for 10 years	Imprisonment for four years and 11 months (Taking into account the offences on a Form 1 specified at [5] below)
Count 7	Between 1 January 2000 and 31 December 2000, attempting to have sexual intercourse with a person between the ages 10 and 16 years (11 or 12 years) whilst under the authority of her father and carer contrary to ss.6C(2) and 66D Crimes Act 1900	Imprisonment for 10 years	Imprisonment for four years

5. In passing sentence for the offence in Count 6, the Applicant asked the sentencing Judge to take into account on a Form 1 the following further
   offences, all committed between 1 January 2000 and 31 December 2000:

1. two offences of aggravated indecent assault with the victim being under the age of 16 years, namely 11 or 12 years, contrary to s.61M(1) Crimes Act 1900;

2. one offence of inciting aggravated indecency with a victim under the age of 16 years, namely 11 or 12 years, whilst under the authority of the Applicant, her father and carer, contrary to s.61O(1) Crimes Act 1900; and

3. one offence of attempted sexual intercourse with a child between the ages of 10 years and 16 years, namely 11 or 12 years, whilst under the authority of the Applicant, her father and carer, contrary to ss.66C(2) and 66D Crimes Act 1900.

Grounds of Appeal

6. The Applicant relies upon the following grounds of appeal:

1. Ground 1 - the Court gave insufficient weight to the Applicant's remorse in sentencing the Applicant.

2. Ground 2 - the Court gave insufficient weight to the Applicant's health in sentencing the Applicant.

3. Ground 3 - the Court did not pay sufficient regard to the period during which the Applicant had not offended since the matters giving rise to the allegations in sentencing the Applicant.

4. Ground 4 - the Court did not pay sufficient regard to the Applicant's background and, in particular, to the fact that the Applicant himself had been the subject of sexual abuse in sentencing the Applicant.

7. Mr Rogers, counsel for the Applicant, informed the Court that he was not
   advancing a ground which asserted that the aggregate sentence was manifestly excessive (T8, 9 June 2020).

Facts of Offences

8. A Statement of Agreed Facts was placed before the District Court which his Honour utilised in his sentencing remarks.

9. His Honour explained how Emma came to reveal her father's offences against her (at ROS[3]-[6]):

1. Each offence related to Carr's daughter Emma. Emma was born in 1988. At the time of the offending, Emma was spoken to by her mother but denied anything sexual had occurred between her and her father. She did not complain then because of threats by her father that he would be taken away and she would grow up without him.

In 2011, when Emma was 22 years old, Carr's stepfather died. Carr then disclosed to Emma that his stepfather had done the same thing to him. He said to her he was sorry for what he had done to her. She really did not want to know any of this. The exchange left her numb but afterwards she started having flashbacks to feelings that had been long suppressed.

In 2015, Emma told her husband what her father had done to her. In April 2016, she went to the police. In February 2018, three telephone conversations between Carr and Emma were lawfully intercepted. Certain admissions and apologies were made during those telephone calls. Carr was arrested on 13 November 2018. He was granted bail the next day.

1. After the guilty pleas, the trial date was vacated and the matter was adjourned to today, 27 September 2019, for sentence. Agreed facts were placed before the Court in August: exhibit A."

   10. Before moving to the particulars of individual offences, the sentencing Judge provided the following general description (at ROS[7]-[9]):

   "7    In 2000, Emma was in year 6, she was 11 or 12 years old. Year 6 students were to have sex education classes, but Emma's mother decided that she should not participate. Coinciding with this decision, the mother obtained work on nightshift. The offender Carr had responsibility during the time she was working, for the three children in the household. The two matters provided him an excuse for what then occurred.

   8   There was no other adult in the home, and over the course of the next few months, he took upon himself in a disturbed and disturbing way to raise sex education matters with his daughter. The pretext led to a series of serious crimes and other acts of an indecent and sexual nature with his daughter that escalated in seriousness. Each occurred while the mother was at work. It seems that her siblings were in bed asleep. After each event, the complainant Emma was told not to tell or she would get into trouble. After many of the events, the offender, in his daughter's presence, made promises that such events would not occur again. They did. He used his daughter for his own sexual gratifications.

   9   Eleven (11) events are particularised in the agreed facts and are the subject of either counts before me or matters will be taken into account when I sentence for count 6. It is accepted that there were other incidents, but that the matters before the Court for sentence or to be dealt with on the form represent a fair summary of the sort of actions that occurred during the relevant period. I can only sentence for the matters for which guilty pleas have been entered."

   11. His Honour then recounted the facts of the offences (at ROS[11]-[23]):

   “11 Prior to the offending, the subject of count 1, the offender had Emma go into his bedroom and watch a pornographic movie. She understandably told her father that what she was being asked to watch was 'gross.'

   12   The first matter, the subject of count 1, s 61M(1), occurred on the next occasion she was asked to go into the parents' bedroom and watch a movie. While she was doing so, Carr lay beside her. He placed his hand on her knee and moved it up inside her thigh. His hand was on her skin, although she was wearing a nightie. He stroked her leg on her thigh near her vagina. She pushed his hand away, but he put his hand back on her arm. She kept pushing him away. He told her it was all right, that he was not going to hurt her. He told her that if she told anyone, that it would be trouble. She returned to her bedroom.

   13   Count 2, s 61O(1) occurred a couple of nights later. Again, she was asked to go into the bedroom. Again, there was a pornographic movie playing. Carr removed his penis from his boxer shorts and touched it until it became erect. Emma had no idea what was happening. She recalls feeling shocked and uncomfortable. She knew what he was doing was not right. He asked her to touch his penis, she told him she did not want to. A few minutes after he made her go to the toilet with him. He asked her again to touch his penis. She was present while he ejaculated into the toilet bowl. He returned to the lounge room. Again, there was conversation about sexual matters while all this was occurring.

   14   The matter on the Form 1 relates to the next recollection she has, it is a s 61M(1) offence. Again, she was in the bedroom, again there was a pornographic movie playing. On this occasion her breasts were touched. Again, there was discussion about what was going on in the movie. Her underwear was taken off, although she was still wearing a nightie. On this occasion, he put his face towards her breast and sucked her nipple. She told him to stop as she did not like what he was doing, but he continued to do it. He also on occasions stopped and looked at her naked vagina.

   15   Count 3, another s 61M(1) offence occurred shortly afterwards as she attempted to close her legs and move her body away from him. He used his hand to touch the outside of her vagina. She flinched, as instinctively she knew that this was not right. Each time she told her father to stop, he would say she was being silly. Eventually he did stop.

   16   Another s 61M(1) matter was placed on the Form 1. It was her next recollection. Again, they were watching a movie. Again, he had his penis out and she refused to touch it. On this occasion, he tried to grab her hand and place it on his penis. She moved her hand away, but eventually her hand did touch his penis. Again, the incident continued for a period.

   17   Count 4 relates to a s 61O(1) offence following the incident where he had her hand touch his penis. Carr asked Emma to go to the toilet with him, and she was present when he ejaculated into the toilet bowl.

   18   Count 5 involves an aggravated indecent assault: s 61M(1). Related to it is a matter on the Form 1 of attempted sexual intercourse with a child: s 66D and s 66C(3). Again, Emma recalls Carr asking her to go to his bedroom. He told her this time not to wear underwear. She did what she was told. Again, as she had been told on previous occasions, she lay on the bed. Again, a pornographic movie was playing on the television. Her nightie was removed. Again, she was told not to be silly. She was told not to make loud noises. Carr touched her breasts with his hands and put his finger on top of what she now knows is her clitoris.

   19   She attempted to push the offender away, however, he turned her around so that she was face down on the bed. He moved her legs apart, and from behind, moved his penis towards her vagina. I take that as the aggravated indecent assault matter. The matter on the form 1 then relates an attempt to push his penis against the complainant's vagina. She moved away, but he pushed his penis again against her. She recalls it being painful, she cried, but he continued to assure her he would be gentler as he went on. Emma clearly remembers the offender stopping and saying that what he had done he was not allowed to do. She did not know what he meant by saying that at the time. But she remembers this event being painful.

   20   Count 6 is a charge pursuant to ss 66C(3) and 66D. There is also a related s 61O(1) matter on the Form 1. She recounts It recalls a similar incident, however this time she was not asked to come to the bedroom without underwear, distinguishing it from the previous matter. Again, she was in the same position on the bed. Again, she said she did not want to do what was to happen. Again, her nightie and underwear were removed and Carr attempted to put his penis in her vagina as he laid on top of her. She cannot recall how long this occurred, but she knew it was longer than the last occasion. She has no recollection of him wearing any condom. She remembers that they went to the toilet and later he ejaculated while making her watch.

   21   Her recollection is that there was a period around this time when for some weeks her mother was not working. She felt happy her mum was around. Nothing occurred between herself and her father of an untoward nature while her mother was around. However, after her mother went back to work, the sexual abuse continued again.

   22   The next occasion she recalls is the subject of count 7, the last count on the indictment. Again, it is a matter pursuant to ss 66C(3) and 66D. On this occasion, the offender removed her clothes and attempted to push his penis insider her vagina as she was face down. She told him it was too painful. Straight after that, he attempted to push his penis between her legs, towards her anus. Even though it was painful for her, she remembers thinking there was simply no point in fighting him. She was scared of him.

   23   The disclosures, as the agreed facts indicate, that these were examples of what was occurring on a regular basis."

   12. His Honour returned to the revelation by Emma of the offences (at ROS[24]-[26]):

   “24    Emma recalls that her mother did raise with her the question whether her father had touched her. She told her mother that nothing had happened and started to cry. Her mother continued to question her, but she believed, as she had been told, that to tell the truth would get her and perhaps her father into trouble. The threats that had been made were preying upon her mind and continued to do so. She feared that she and her siblings would grow up without a father if she told the truth. The agreed facts indicate that there were things that occurred in the family which reduced the opportunity for the offender to commit similar offences. There is no evidence before me that after this last incident anything else occurred. All of the events occurred while she was in year 6 and aged between 11 and 12.

   25   Nothing was spoken of by her father until 2011 when Carr's stepfather passed away. On 12 September 2011, he called Emma into his room. She was then 22 about to turn 23. He told her that he would not hurt her. He told her he was sorry and he wanted to talk. He disclosed to her what had been done to him and his siblings. He did say it was not an excuse, but that he wanted her to know. As I noted earlier, this was not something she wanted to know and it led to her having flashbacks.

   26   The disclosure to her husband was in 2015. In April 2016, there began the process of making the police statement, which led to the agreed facts which are before the Court. There were three conversations that were lawfully recorded by police. During one of them, the offender admitted that what he did was for his own satisfaction. When asked why by Emma he said, 'Because I became weak. I became weak and did things that I should never have done' and hurt her. He said 'What can I say Emma? I'm sorry.' The complainant said to him, 'Well then, why can't you say, Emma, I'm sorry I sexually assaulted you, because you know what you did. You know.' He replied then and only then 'Emma, I'm sorry I sexually assaulted you'."

   13. The Applicant was arrested and charged with the offences on 13 November
       2018 and was granted conditional bail on 14 November 2018. He remained
       on bail until sentence was passed on 27 September 2019.

The Applicant’s Subjective Circumstances

14. The Applicant was 37 years old at the time of the offences. He was aged 56 years at the time of sentence.

15. The Applicant’s criminal history was confined to driving offences committed in 1982.

16. The Applicant did not give evidence at the sentencing hearing.

17. A report dated 19 September 2019 of Mr Luke Brabant, forensic psychologist, was tendered in the defence case together with a report dated 15 August 2019 of Dr Paul Stevenson, psychiatrist, who had been treating the Applicant since 2015.

18. A number of references were tendered in the defence case from the Applicant’s older and younger sisters and a work associate of the Applicant who knew him well.

Victim Impact Statement

19. Emma read a victim impact statement to the Court. She recounted the effect of the offences committed by her father against her as a young girl aged 11 and 12 years and the detrimental consequences which had blighted her life since then.

20. In the course of the statement, Emma stated that “being forced to live in the same house as him and having to see him every day was terrifying”. Emma said that the offences had “greatly affected the way [she was] able to develop relationships with people and [her] ability to judge people’s character”. Emma concluded the victim impact statement as follows:

“My life up until this point has not been easy. I have had a lot of internal struggles about this crime and how to eradicate it from my life. For many years I thought that shutting it and the world out would make it go away, and for years it did, but when it came back it came back with a vengeance and I didn’t know what to do, I was so lost. So, I decided to take control. Take control of a situation that I have never had control over, and never thought I would. Taking back control hasn’t been easy, so many times it has been that hard I have wanted to give up but I have support from some amazing people who have picked me up and reminded me that I have control and I am a survivor, not a victim.”

The Sentencing Hearing and Sentencing Remarks

21. The sentencing hearing with respect to the Applicant proceeded on 27 September 2019. Counsel for the Crown and the Applicant had furnished written submissions on sentence. After documents had been tendered and Emma had made her victim impact statement, counsel for the Crown and the Applicant addressed succinctly on sentence.

22. His Honour adjourned for a period before returning to Court to deliver ex tempore sentencing remarks. It is appropriate to set out parts of his Honour’s sentencing remarks to assist an understanding of arguments advanced in this Court.

23. After recounting the facts of the offences, his Honour explained the concept of objective seriousness of the offences before turning to the victim impact statement and then the maximum penalties for the offences and consideration of s.25AA Crimes (Sentencing Procedure) Act 1999 with respect to sentencing for historical child sex offences.

24. His Honour then addressed the approach to be taken concerning the Form 1 offences and the relevance of delay since the offences were committed in passing sentence. With respect to delay (which bears on Ground 3), his Honour said (at ROS[43]-[47]):

“43    Here the offender ceased offending against his daughter and has not, so far as the Court is aware, committed any crime since 2000. Sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517, at 519; Mill v The Queen (1988) 166 CLR 59, at [14].

44   The substantial delay in bringing a matter before the Court, in some cases, may operate to the offender's advantage by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending: AJB v R (2007) 169 A Crim R 32; Wright v R [2008] NSWCCA 91.

45   Offenders are entitled to have evaluated these matters in their favour. Any factors deriving out of their conduct during the period of the delay which reflects to their advantage should be taken into account. This includes practical demonstrations of rehabilitation.

46   In R v Moon [2000] NSWCCA 534, Howie J noted that while there is no universal rule and delay should not be allowed to dictate a sentence that is not appropriate:

'It is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct:' at [81].

47   I note, as I have already indicated, that s 25AA requires reconsideration of that particular passage. Nevertheless, it is a matter for the Court to consider."

25. His Honour then turned to the Applicant's subjective case referring to letters from the Applicant's sisters as well as the psychological report of Mr Brabant and the report of Dr Stevenson, psychiatrist. His Honour said (at ROS[52]-[58]):

“52    Now 56 years old, Carr described to his forensic psychologist, Mr Brabant, a 'complex history' of frequent sexual abuse and other violence against him and his sister by his stepfather when he was quite young. Family and Community Services were involved at some stage. His stepfather spent time in prison. His stepfather however returned to the family home on release.

53   He reports having learning, literacy and discipline difficulties while at school. He was expelled in year 10. He was able to find work and he spent five years in the army before leaving to ultimately obtain work, and has worked in the community from the age of 25 successfully as a pest controller. He has no relevant criminal history.

54   He married at 24 and had three children, of whom Emma is the eldest. He has had no contact with any of his children since this matter came to light. He did say he made some disclosures to his wife some time ago, and that is when measures were taken to limit his contact with Emma. He told Mr Brabant of his remorse and shame.

55   He has been seeing mental health professionals and has seen them on a number of occasions, starting when he was 13 after his stepfather's abuse was revealed. He has taken such assistance and used it to successfully overcome a problem with alcohol abuse that arose while he was serving in the army. He has been seeing Dr Stevenson, who provided a report to the Court, since 2015. He takes diazepam to assist in dealing with his many problems.

56   Mr Brabant reports that 'a significant history of trauma' has led him to diagnose post-traumatic stress disorder, PTSD. Mr Brabant found it difficult to identify specific causal factors for the offending behaviour, but he assessed Carr's risk of reoffending using both static and dynamic risk tools. Overall he suggests Carr's risk of reoffending is likely to be low, despite a lack of insight and denials of some aspects of his behaviour. He made this conclusion as the history he was given and the history, as it appears to me, is that Carr was able to desist from committing further sexual offences and has not committed any other sexual offences since.

57   Mr Brabant says that risk can be further moderated by psychological and psychiatric intervention. He recommends these treatments be undertaken, but notes that participation in intensive custodial offence-focused rehabilitation should not be required. Mr Brabant notes that although Carr's criminal behaviour towards Emma was frequent and escalated, it occurred during a relatively short period of his life and he was able to desist without detection and official intervention or formal rehabilitative treatment.

58   Dr Stevenson who has been treating Carr both as an outpatient and in hospital since 2015 provided a report: exhibit 2. In it, he notes Carr's extremely severe developmental trauma. Dr Stevenson is of the view that it is one of the most severe he has ever come across. Despite Carr's history, however, he said he had managed to sustain meaningful relationships and career. Dr Stevenson concluded that Carr meets the diagnostic criteria for PTSD and major depression. The history of fluctuating levels of depression since early childhood was noted. Dr Stevenson's opinion is that dealing with such complex trauma is a long process. He says, to date Carr has demonstrated excellent engagement in treatment, he has been compliant with therapy and medication. If this continues, Carr will make gradual progress and his risk of reoffending is low."

26. The sentencing Judge then turned to the impact of imprisonment upon the Applicant. His Honour said (at ROS[59]-[62]):

“59    Courts do not underestimate the lived experience of gaol, particularly for those, who like Carr, are older with mental health and other conditions: R v Burrell (2000) 114 A Crim R 207, at [27].

60   The fact that an offender was or is suffering from a mental disorder or disability, either at the time of the commission of the offence or at the time of sentencing, can be taken into account at sentencing: R v Anderson [1981] VR 155; (1980) 2 A Crim R 379: s21A(3)(j) Crimes (Sentencing Procedure) Act 1999: DPP v De La Rosa [2010] NSWCCA 111. Sentencing for any offender, but one who has a history such as this offender, calls for what have been regarded as 'sensitive discretionary decisions': R v Enqert (1995) 84 A Crim R 67 at 67. This involves the application of the particular facts and circumstances of the case for the purposes of criminal punishment.

61   Imprisonment is generally more burdensome for prisoners such as Carr than for the average prisoner. That can justify a finding of special circumstances. Care, however, should be taken to avoid double counting such mitigating factors. Age; ill health; problems dealing with complex trauma, do not necessarily mean that a prison sentence should not be imposed, or that a sentence should be less than the circumstances of that case would otherwise require. It is clear that, as Mr Brabant concluded, a long period of imprisonment could and probably will disrupt the necessary psychological and psychiatric care.

62   While I am quite confident Justice Health will do what they can, many cases that I have heard over the past year indicates that access to psychological and psychiatric treatment can be difficult, if not problematic, while in custody. Further, Courts do not underestimate the lived experience of gaol for those charged with child sex offences. It is notorious that they are very low in the hierarchy of prisoners, and are often subject to assaults or threats while in gaol. It is notorious that people such as Carr, more often than not, will serve their sentences in some form of protection."

27. His Honour referred to the approach on sentence for multiple offences (at ROS[63]-[66]):

“63    Each count for sentence involved discrete acts of criminality however each count had some common features. The purposes of sentencing apply to each, and those overlap. The events occurred over a period of months. They are representative. The penalty for one offence could not fully encompass the criminality of any of the others.

64   Each of the sentences should be partially cumulative. The aggregation of all the sentences must be adjusted in an appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, per McHugh J; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.

65   It is recognised that Courts simply do not add one sentence upon the other. It is also recognised the severity of the combined sentences should not, unless absolutely necessary, operate to destroy any prospect of rehabilitation and reform.

66   The severity of a sentence increases at a greater rate than the increase in the length of the sentence. To put it simply, two years in gaol is a lot worse than one year in gaol. Three years is significantly worse than one. That said, public confidence in the administration of justice requires that there be no suggestion there is some sort of discount for multiple offending."

28. In comments which came under close scrutiny during submissions before this Court, his Honour considered the Applicant's pleas of guilty and the issue of remorse (at ROS[68]-[70]):

“68    The guilty plea came late. Advantage was taken of the special call over, and it meant that Emma was spared the ordeal of the trial, and did not have to wait any longer for vindication. The plea was a practical manifestation of remorse and contrition. That meant that another trial could be listed at Wollongong District Court. The plea thus had some utilitarian value to the efficiency of the justice system. In Thomson (2000) 49 NSWLR 383, at [3], Spigelman CJ noted that particular cases, especially sexual assault cases and crimes involving children, there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence.

69 However, these proceedings are governed by s 25D of the Crimes (Sentencing Procedure) Act. I must apply s 25D(2)(e) and reduce each indicated sentence by 10% as the legislature provides for to reflect the utilitarian value of that plea. I will take care that the benefit of that reduction is not eroded by the process of accumulation. I will not engage in a strictly mathematical approach which would result in the indicated sentences being set out as fractions of months or weeks. As I understand the legislation, sensible rounding is still a process available to the Court. Ultimately, when I look at the reduction for the plea for each indicated matter, each of the reductions will even out to effectively reduce the individual and overall sentences by the required 10%.

70    I can and do take into account the expressions of remorse that were made at various times by the offender. But it is also clear, as Mr Brabant set out in his report, that the offender still has little insight into what he did, why he did it, and the impact upon the complainant, and that is despite the clear impact of the abuse on him and his sister many years ago. There are reasons here, which I trust will be clear, of the background of the offender, recognition of the community's interest that he be returned to the community in a way that can be structured and assisted, proper recognition of his history and the impact of imprisonment on him, for a finding of special circumstances. In doing so, in making that finding, I am mindful of the requirement that the minimum period for which the offender should be imprisoned, must also properly reflect the gravity of his offences and the other purposes of sentencing."

29. The sentencing Judge then referred to written and oral submissions which had been made on behalf of the Crown and the Applicant. His Honour said (at ROS[71]-[77]):

“71    I am indebted to Ms Walshe, solicitor for the Director of Public Prosecutions, and Mr Fraser, Public Defender, for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised, but I have considered and addressed them in coming to my determinations as to the appropriate sentence.

72   Specifically, I note that Ms Walshe made some important points, in addition to the comprehensive written submissions. First, that no other sentence other than full-time imprisonment is appropriate in relation to each of the matters before the Court. Second, she draws attention to the fact that at the time of committing the offences, the offender was saying to his daughter and himself he should not do what he was doing, but he did. She also asks I take considerable care in putting too much weight upon expressions of remorse, for the reasons I have already outlined. And finally that I not double count matters either in aggravation or mitigation of penalty, because there is considerable overlap in relation to the evidence and sentencing factors that have to be taken into account.

73   Mr Fraser drew my attention to the expressions of remorse that had been made over the years by the offender. He also noted that so far as this offender is concerned, given that the offending ceased sometime in 2000, that the specific deterrent impact of custody will be met by, as Howie J pointed out in Moon, by the closing of the prison door. That does not, as he clearly recognises, mean that a deterrent sentence should not be imposed.

74   Particular attention was drawn to the history which is before me. It is sad but not uncontroversial, relating to a severe history of childhood deprivation, which, on any view, must have compromised his decision-making processes. Reference is made to the diagnosis of depression and post-traumatic stress disorder. Though no specific causal link is put forward, it is clear that both were operating at the time of the commission of this offence and require a sympathetic consideration.

75   In particular, a sympathetic consideration is asked, because this matter falls into a case where an abused child is now to be dealt with as an abuser, and that the cycle of abuse has unfortunately and tragically moved to another generation. All of these matters say that while heavily deterrent and retributive sentences are generally called for, less weight can and should be given to those factors.

76   Ultimately, Mr Fraser points to the dilemma that any sentencing Court has to address. Adequate punishment requires a lengthy period in custody. But the Court also has to be aware, as they are made aware all too frequently by Victim Impact Statements, of the trauma that is caused by premature childhood activity, and that that trauma is often reflected in many and various symptoms. Tragically, one is the repetition of the offending behaviour. On the other hand, it bears repeating that this offender knew the consequence of his actions perhaps more than anyone else.

77   I have had regard to practices of other sentencing and appellate Courts. As I indicated in the discussion, it is a sad but tragic fact that this is the third matter involving offences committed on a child by a father or a stepfather that I have had to deal with in the last couple of months. I have to ensure that this sentence is consistent with principles set out in other cases. The guidance offered by appellate Courts is always welcome and the pattern of past sentences, particularly the current pattern of sentencing for offences such as this, can help guide the penalty that I must impose and I am required to have regard to it. But as Bell and Gageler JJ noted in The Queen v Pham [2015] HCA 39, '... sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases:' at [47]."

30. His Honour then turned to a number of particular findings and conclusions (at ROS[78]-[85]):

“78    As I indicated, sentencing for a stale crime calls for a considerable measure of understanding and flexibility: R v Todd [1982] 2 NSWLR 517, at [519]. This is particularly so as Carr ceased offending without formal intervention. The delay in bringing the matter before the Court operates to his advantage. It has given him an opportunity to demonstrate his capacity to lead a prosocial life. This in turn makes it less necessary to punish him in order to deter his future offending. It provides another basis for a finding of special circumstances.

79   Carr's history of severe developmental trauma and its long-term consequences is deserving of sympathy and understanding, and it must be taken into account. Such profound depravation can compromise a person's capacity to mature and make mature decisions. It is a relevant factor in mitigation: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. A pattern of abuse set in train by his father and stepfather has now continued into another generation. Carr's capacity for self-awareness and awareness of others was and remains compromised. His moral culpability for these crimes must be reduced. But that said, he knew what he was doing and he knew the wrongness of what he was doing to his daughter. Carr is not well equipped physically or psychologically for a long term of imprisonment. He will require psychological and psychiatric care in custody and on release.

80   On release, his risk can be managed as he retains some strong prosocial supports and has accommodation available to him. A long term in prison might erode that support, but I am confident it will be given to him at least by some portion of his family. The other portion of his family I am sure will remain estranged from him, justifiably so. A long term in prison is unlikely to improve his psychological health, but mitigating factors can only go so far.

81   Carr exploited his daughter's vulnerability. He exploited her innocence. Each offence showed a callous disregard for his daughter's physical and mental wellbeing. He showed no regard for her, and showed no understanding of the possible impact on her of his crimes, despite his own experience of abuse.

82   There are, unfortunately, worse examples of such offending, but that does not diminish the seriousness of the matters for sentence. Courts are required to analyse and compare horrors inflicted upon others as part of the calculus for converting human behaviour in all its forms into units of punishment: Weininger v The Queen (2003) 212 CLR 629.

83   The sentence imposed is only one indicator of the seriousness of which the Courts view the crimes committed against a child. That said, a Court sentencing an offender must take into account all relevant considerations. This means a direct correlation between the harm done and the time to be served is impossible. A victim of sexual offences should never equate or measure her injury with the punishment actually inflicted on the offender.

84   Adequate punishment involves exacting just retribution for what Carr did to his daughter. Retribution is the notion that reflects the community's expectation that offenders will suffer punishment, and that particular offences will merit severe punishment. Every child is in need of and deserving of such protection and vindication as the criminal law can provide. It is perhaps tragic in this case that Carr, as a child, did not receive that protection and vindication.

85   The sentence must however, by its severity, recognise the gross violations of the complainant in this matter's, the child in this matter's, the daughter in this matter's, sexual integrity. Here, the offence was committed by a father, and the Court must recognise that fact. The sentence must attempt to vindicate the dignity of the complainant. The sentence must attempt, so far as is practicable, to denounce what was done and express the community's disapproval of what Carr did to his daughter in 2000."

31. His Honour then nominated the indicative sentences and imposed the aggregate sentence mentioned earlier (at [3]-[4]).

The Applicant’s Grounds of Appeal - Claims that Insufficient Weight Given to Certain Factors and Sufficient Regard Not Paid to Other Factors

32. It is appropriate to consider the four grounds of appeal together in circumstances where there is a common theme in the framed grounds which relates to the sufficiency or otherwise of attention said to have been given by the sentencing Judge to a particular factor or factors on sentence.

Submissions for the Applicant

33. Mr Rogers sought to distinguish the line of authority in this Court which has emphasised the difficulty confronting an applicant who advances a ground of appeal claiming that insufficient or inadequate weight was given to a particular factor on sentence. He submitted that the grounds of appeal relied upon by the Applicant contend, in effect, that error in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 is demonstrated in this case.

34. Counsel submitted that the sentencing Judge had either given insufficient weight to the Applicant’s remorse and his health issues or had not paid sufficient regard to the period of time which had passed since the commission of the offences and the Applicant’s own background of being sexually abused as a child.

35. Mr Rogers developed these submissions by reference to parts of the sentencing remarks. With respect to remorse, it was submitted that insufficient weight had been given to the Applicant’s admission of the offences made some years ago. It was submitted that the sentencing Judge’s criticism of his lack of insight into why he committed the offences was unhelpful and did not bear upon the issue of remorse.

36. Counsel submitted that the sentencing Judge did not have regard to these aspects in an appropriate way in assessing the Applicant’s moral culpability which, it was submitted, was significantly reduced.

37. Mr Rogers submitted that a proper basis had been demonstrated for this Court to intervene and resentence the Applicant in accordance with s.6(3) Criminal Appeal Act 1912.

Submissions for the Crown

38. The Crown submitted that the Applicant’s grounds of appeal seek to challenge the weight given to various factors by the sentencing Judge and that these are matters lying within the exercise of discretion on sentence where this Court has been slow to intervene: Burrows v R [2017] NSWCCA 45 at [51]; Tuite v R [2018] NSWCCA 175 at [73]; Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16].

39. With respect to the first ground of appeal, the Crown submitted that the finding made by the sentencing Judge concerning remorse was open and that the Applicant had failed to demonstrate error in this respect.

40. Concerning the second ground of appeal, the Crown submitted that the sentencing Judge had regard to the Applicant’s mental health issues and the sexual abuse of him as a child which had given rise to a range of health difficulties. The Crown pointed, in particular, to what the sentencing Judge had said at ROS[59]-[62] (at [26] above).

41. With respect to the third ground of appeal, the Crown submitted that the sentencing Judge had regard to the absence of offending in the period since the commission of the offences by the Applicant with delay being taken into account in a manner that did not disclose error. The Crown pointed to ROS[78] (at [30] above).

42. Concerning the fourth ground of appeal, the Crown submitted that the sentencing Judge had regard to the Applicant’s background and history of sexual abuse with these aspects being taken into account at various points including ROS[79] (at [30] above).

43. The Crown pointed, as well, to other aspects of the offences which emphasised their objective gravity. Reference was made to what was said by this Court in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110] concerning the profound and deleterious effects upon victims of child sexual offences. The Crown emphasised that the present offences involved the victim’s own father abusing his position of trust by committing offences against his daughter: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [104]. The Crown pointed to other features of the offences which served to explain the sentences imposed upon the Applicant.

44. The Crown submitted that the Court should reject each ground of appeal.

Decision

45. In approaching the present grounds of appeal, it is necessary to bear in mind that the Applicant must establish that the sentencing Judge has made an error in the exercise of sentencing discretion in accordance with the principles in House v The King at 505. Severity appeals under s.5(1)(c) Criminal Appeal Act 1912 are not rehearings. It is not enough that the appeal court considers (if it be the case) that, had it been in the position of the sentencing Judge, it would have taken a different course: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].

46. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, Gageler J observed at [53] that a ground of appeal framed only in terms of “weight” was incapable of establishing an error in the first category of appellate intervention under House v The King and that it pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.

47. This Court has emphasised the challenges confronting an applicant who contends that error in accordance with the principles in House v The King has occurred because of insufficient or inadequate weight being given to particular features on sentence. In Burrows v R, Wilson J (Macfarlan JA and Schmidt J agreeing) said at [51]-[52]:

“51   A ground of appeal which asserts that insufficient or inadequate weight was given to a particular feature imports a tacit concession that some weight was given to it. If that is so, it is difficult to successfully maintain that the overall sentencing discretion miscarried. Questions of weight in the exercise of the sentencing discretion are very much matters for the sentencing judge. It will be a rare case where considerations of the weight given to a particular feature justifies appellate intervention. In Majid v R [2010] NSWCCA 121 Johnson J (with whom Simpson and McCallum JJ agreed) said, at [40]:

‘The second, third and fourth grounds of appeal complain that the sentencing Judge had given ‘insufficient weight’ to different aspects of the Applicant’s subjective case in passing sentence. In Stephens v R [2009] NSWCCA 240, Grove J (McClellan CJ at CL and RA Hulme J agreeing) observed at [16]-[18], that there are inherent problems in a ground expressed in that fashion succeeding, as the ground tacitly concedes that some weight had been placed upon the factor by the sentencing Judge. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender’s application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57].’

52   See also Bland v R [2014] NSWCCA 82; Yang v R [2012] NSWCCA 49 at [25]; and DF v R [2012] NSWCCA 171 at [77].”

48. In Tuite v R, Hoeben CJ at CL (Button J agreeing) said at [73]:

“Significantly it is not contended by the applicant that his Honour did not have regard to, or take into account the applicant’s youth or his dysfunctional background. As is properly conceded by the applicant his Honour had specific regard to those factors. The difficulty for the applicant in such circumstances is that the challenge is not directed to a failure on the part of the sentencing judge to have regard to an important factor but to the weight accorded to those factors. The question of weight, of course, is part of the ‘instinctive synthesis’ process of reasoning of the sentencing judge and ultimately involves an exercise of discretion. It is well established that matters of weight are very much the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined (Yang v R [2012] NSWCCA 49 at [25]; Clinton v R [2014] NSWCCA 320 at [40]).”

49. In Hanania v R [2012] NSWCCA 220, Button (Hoeben JA and myself agreeing) said at [33]:

“It seems to me that a ground asserting that a particular feature has not been given sufficient regard or sufficient weight by a sentencing judge is, in truth, a particular of a ground asserting that the sentence is manifestly excessive. That is because the ground accepts that some regard or weight was given to the factor, but asserts that it was insufficient. It seems to me that the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed. Such an approach leads to considerations of outcomes, not process.”

50. With respect to the first ground of appeal, the sentencing Judge had regard to the issue of remorse. Reference was made to the Applicant’s expressions of remorse made to his older sister (ROS[48]-[49]), to a friend (ROS[51]) and to Mr Brabant, the psychologist (ROS[54]). His Honour also found that the Applicant’s guilty pleas were a practical manifestation of remorse and contrition (ROS[68]). His Honour stated expressly that he took into account “the expressions of remorse that were made at various times” by the Applicant (see ROS[70] at [28] above).

51. Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 provides for an offender’s remorse to be taken into account as a mitigating factor on sentence, but only if the offender has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

52. Assessment by a sentencing court of the genuineness and value of remorse is likely to be better informed in circumstances where it is expressed by an offender directly in evidence at the sentencing hearing, as remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction: Alvares v (2011) 209 A Crim 297; [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [39]. The Applicant did not give evidence at the sentencing hearing so that his Honour was not able to make that direct assessment. That said, there were features of this case which led his Honour to make findings favourable to the Applicant concerning remorse.

53. It was relevant for his Honour to refer to the fact that the Applicant “still has little insight into what he did” (see ROS[70] at [28] above). A person’s level of insight into offending behaviour is relevant to the question of remorse as well as prospects of rehabilitation: AK v R [2016] NSWCCA 238 at [97]. It is noteworthy that counsel who appeared for the Applicant at first instance accepted that, on the evidence placed before the sentencing Judge, there did not appear to be genuine insight into his offending behaviour (T6.28, 27 September 2019).

54. Also relevant to the issue of remorse was the fact that the Applicant had been committed for trial from the Local Court and had a trial date fixed in the District Court. As the sentencing Judge observed (see ROS[68] at [28] above) “the guilty plea came late”. This is not a case where early pleas of guilty had been entered by the Applicant reflective of remorse.

55. Concerning the second ground of appeal, the sentencing Judge identified and had regard to the Applicant’s significant history of trauma and diagnosis of post-traumatic stress disorder and depression (see ROS[56] at [25] above). Reference was made to treatment provided to the Applicant by Dr Stevenson since 2015 (at ROS[58] at [25] above]). His Honour referred extensively to these issues and the reports of Mr Brabant and Dr Stevenson (see ROS[59]-[62] at [26] above). These factors were taken into account on sentence.

56. With respect to the third ground of appeal, the sentencing Judge had regard to the delay between the period when the offences were committed and the time when the Applicant stood for sentence. Having identified this aspect, his Honour had regard to it in a manner which does not disclose error (see ROS[43]-[47] at [24] above; ROS[78] at [30] above).

57. Likewise with respect to the fourth ground of appeal, the sentencing Judge had regard to the Applicant’s history of abuse as a child and his health issues (which were overlapping issues) as factors taken into account in the process of instinctive synthesis before finally determining sentence. His Honour recounted the Applicant’s history of childhood sexual abuse and his resulting health difficulties (see ROS[52]-[58] at [25] above; ROS[74]-[75] at [29] above). The sentencing Judge had particular regard to these factors when applying the principles in Bugmy v The Queen and making findings that the Applicant’s moral culpability was reduced arising from his history of profound deprivation (see ROS[78] at [30] above). No error is demonstrated in this respect.

58. The sentencing Judge was well aware of the gravity of the offences committed by the Applicant and the profound consequences of the offences upon his daughter, the victim (see ROS[76]-[77] at [29] above; ROS[81]-[85] at [30] above). In R v Gavel, this Court said at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”

59. The Applicant’s course of criminal conduct extended over a period of time and was directed to his natural daughter. Sexual abuse such as this by a father against his own young daughter involves an abuse of trust of the highest order: ZA v R at [104]. The playing of pornographic movies to the victim as part of the offences added a further corrupting feature to the offences: R v Gavel at [96].

60. The offences for which the Applicant was to be sentenced were representative counts: AK v R at [66]-[72]. His Honour took this feature into account in an appropriate way (see ROS[9] at [10] above; ROS[23] at [11] above).

61. The offences were objectively serious. In each case, there was skin-on-skin contact involving the Applicant touching the outside of the victim’s vagina or breasts or forcing her to touch his penis.

62. Also relevant is the fact that a finding of special circumstances was made so that the non-parole period constituted 64.7% of the aggregate sentence. It is apparent that a substantial degree of notional concurrency was allowed in determining the aggregate sentence.

63. Sentencing is a discretionary process involving a process of instinctive synthesis leading to the formulation of a value judgment as to the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). In Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said at [59] (footnotes omitted):

“In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ adopted the explanation of the sentencing discretion given by Gaudron, Gummow and Hayne JJ in Wong v The Queen that the description of the balance struck by a sentence as an ‘instinctive synthesis’ is not used ‘to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features’."

64. The extensive extracts from the sentencing remarks appearing earlier in this judgment demonstrate the way in which his Honour identified a wide range of factors (some of which were conflicting) which were taken into account in the process of forming a value judgment as to the appropriate aggregate sentence to be passed in this case.

65. The Applicant has not made good any of his grounds of appeal. The sentencing Judge’s careful and balanced sentencing remarks demonstrate the exercise of instinctive synthesis undertaken in this case, where all factors were taken into account in passing sentence.

66. Each ground of appeal should be rejected.

Conclusion

67. I propose the following orders:

1. leave to appeal granted;

2. appeal against sentence dismissed.

68. HARRISON J: I agree with Johnson J.

69. HAMILL J: I agree with Johnson J.

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Decision last updated: 26 August 2020