Carroll v The Queen

[2019] NSWCCA 243

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Carroll v R [2019] NSWCCA 243
Hearing dates:	29 July 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Before:	Macfarlan JA at [1] Johnson J at [2] Wright J at [82]
Decision:	1. Grant leave to appeal against sentence. 2. Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – leave to appeal against sentence – two offences of sexual assault against stepdaughter – whether sentencing Judge erred by double counting statutory aggravating features when considering objective seriousness of one offence – no error demonstrated in approach taken by sentencing Judge – complaint of manifest excess – no useful range established by reference to previous cases – sentence was substantial but not unreasonable or plainly unjust – appeal dismissed
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 Alarcon v R [2018] NSWCCA 298 Beavis v R [2018] NSWCCA 248 MD v R [2015] NSWCCA 37 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v CTG [2017] NSWCCA 163 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Hookey [2018] NSWCCA 147 R v Knight [2015] NSWCCA 222 R v KNL (2015) 154 A Crim R 268; [2005] NSWCCA 260 R v Scavera [2016] NSWCCA 145 R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90 RL v R [2018] NSWCCA 274 SS v R [2016] NSWCCA 197 XZ v R [2018] NSWCCA 76
Texts Cited:	---
Category:	Principal judgment
Parties:	Patrick Carroll (a pseudonym) (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Gow (Applicant) Mr D Patch (Respondent)   Solicitors: Robertson Saxton Osborne (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/299235
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: --- Date of Decision: 29 March 2018 Before: O’Rourke SC DCJ File Number(s): 2016/299235

Judgment

1. MACFARLAN JA: I agree with Johnson J.

2. JOHNSON J: The Applicant, Patrick Carroll, seeks leave to appeal with respect to an aggregate sentence imposed at the Parramatta District Court on 29 March 2018 for offences of sexual assault against his stepdaughter. A pseudonym is used to describe the Applicant as publication of his correct name would tend to identify the victim who is entitled to protection against identification under s.578A Crimes Act 1900.

The Offences, Aggregate Sentence and Indicative Sentences

3. Following pleas of guilty, the Applicant was sentenced by her Honour Judge O’Rourke SC to an aggregate sentence of imprisonment for 12 years comprising a non-parole period of eight years commencing on 7 October 2016 and expiring on 6 October 2024 with a balance of term of four years commencing on 7 October 2024 and expiring on 6 October 2028.

4. Her Honour nominated the following indicative sentences:

1. for an offence of aggravated sexual intercourse (under authority) with a person under 10 years contrary to s.66A(2) Crimes Act 1900, for which the maximum penalty was life imprisonment with a standard non-parole period of 15 years - an indicative sentence of imprisonment for 10 years with a non-parole period of six years and nine months;

2. for an offence of aggravated sexual intercourse (under authority) with a person between the ages of 10 and 14 years contrary to s.66C(2) Crimes Act 1900, for which the maximum penalty was imprisonment for 20 years with no standard non-parole period - an indicative sentence of imprisonment for seven years and six months with a non-parole period of five years.

5. In passing sentence for the s.66A(2) offence, the sentencing Judge was asked to take into account two offences of aggravated indecent assault on a person under 16 years contrary to s.61M(2) Crimes Act 1900 which, if prosecuted separately, would each be punishable by a maximum penalty of imprisonment for 10 years with a standard non-parole period of eight years.

Grounds of Appeal

6. By Notice of Application for Leave to Appeal filed on 28 February 2019, the Applicant raised the following grounds of appeal:

1. Ground 1 - the sentencing Judge erred in her assessment of the objective seriousness of the s.66A(2) offence in that she had regard to the fact that the offending occurred in the victim’s home as a statutory aggravating factor pursuant to s.21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 and later had consideration to that same factor again in determining the objective seriousness of that offence.

2. Ground 2 - the sentencing Judge erred in her assessment of the objective seriousness of the s.66A(2) offence in that she had regard to the fact that the offending involved a breach of trust as a statutory aggravating factor pursuant to s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 and later had consideration to that same factor again when determining the objective seriousness of that offence.

3. Ground 3 - the aggregate sentence imposed is manifestly excessive.

Facts of the Offences

7. What follows is drawn from an Agreed Statement of Facts relied upon in the District Court.

8. The Applicant and the victim’s mother began a relationship in 2007 and subsequently had three children together. The victim was the Applicant’s stepdaughter.

First Form 1 Offence Under s.61M(2) Crimes Act 1900 - Aggravated Indecent Assault (Forcing the Victim to Touch the Applicant’s Penis)

9. The first offence occurred in 2009 or 2010 when the Applicant, the victim and her family were living in a house in western Sydney. At that time, the victim was seven or eight years old.

10. At the time of this offence, the victim was lying on a lounge watching television when the Applicant grabbed her arm and said “Come lay with me”. The Applicant kept his pants on, but pulled his penis out. The victim was wearing pyjamas. The Applicant took the victim’s hand and made her rub his penis up and down. The Applicant tried to kiss the victim on the lips and said “I love you beautiful”.

Offence Under s.66A(2) Crimes Act 1900 - Aggravated (Under Authority) Sexual Intercourse with a Child Under 10 Years (Digital Penetration of the Victim Aged Seven or Eight Years)

11. Some time after the first s.61M(2) offence described above, and whilst living at the same house in western Sydney, the Applicant would call the victim into his room and tell her to get into bed. The victim stated that she lay stiff in the bed when this occurred.

12. On one occasion whilst the victim’s mother was out, the Applicant called the victim into the bedroom. She lay next to him. He began to grind his penis on the outside of her pyjamas. He was wearing underwear. Whilst the Applicant was doing this, he placed his fingers in the victim’s vagina. The victim said that this act “hurt” her.

Second Form 1 Offence Under s.61M(2) Crimes Act 1900 - Aggravated Indecent Assault (Touching the Victim’s Vagina)

13. The next offence occurred in the same house in 2010 or 2011 when the victim was eight or nine years old and was in Year 4 at school.

14. The victim was in her bed and pretended to be asleep. The Applicant came into the room and put his fingers down her pants touching her vagina on the inside of her clothes. The Applicant was clothed at the time.

Offence Under s.66C(2) Crimes Act 1900 - Sexual Intercourse with Child Aged Between 10 and 14 Years (Digital Penetration of Victim Aged 11 Years)

15. The final occasion when the victim recalls any sexual contact by the Applicant occurred in 2013 when she was 11 years old and was in Year 6 at school. They were still residing in the house in western Sydney.

16. One night when the victim’s mother was out, the victim went to bed and said goodnight to the Applicant. It was about 7.30 pm or 8.00 pm and she was wearing a nightie with underwear and shorts underneath.

17. The victim entered her bedroom and shut the door and pretended to be asleep. The Applicant came in and whispered to her whether or not he could “lay with [her]”. The Applicant pulled his pants down and was naked from the waist down. He pushed his penis towards the victim who was still wearing her underwear. The Applicant’s penis was hard and he was “pushing it against [her] butt”. The Applicant placed his hand down her pants and inserted a finger into the victim’s vagina in a manner which hurt her. The victim said “Get out of my room”. The Applicant said “I love you” and she yelled “Get out”.

18. Later that evening, the victim went to the bathroom where she wiped herself and saw blood.

19. The Applicant did not touch the victim again after this incident.

20. The Applicant was arrested and charged with these offences on 7 October 2016 and has been in continuous custody since that date.

The Applicant’s Subjective Circumstances

21. The Applicant was born in 1987. He was 31 years old at the time of sentence. The Applicant has no prior criminal history.

22. A presentence report was tendered at the sentencing hearing which recounted that the Applicant had completed his Higher School Certificate and then undertook further studies obtaining a certificate in greenkeeping. He was in continuous employment since leaving school at the age of 18 years. The author of the presentence report noted that the Applicant presented as a person who had developed minimal insight into his offending behaviour which had occurred over a four-year period.

23. A report dated 30 November 2017 of Ms Emma Hubner, psychologist, was tendered in the defence case on sentence. A number of references were also tendered including one from the Applicant’s wife and brother and other family friends.

Some Findings of the Sentencing Judge

24. Given the first and second grounds of appeal, it is appropriate to set out that part of her Honour’s sentencing remarks dealing with an assessment of the relative seriousness of the offences. Her Honour said (ROS11-17) (the emphasised parts are those relied upon by the Applicant):

“It is necessary that I make an assessment of the relative seriousness of the offences before the Court. Such a determination is an essential part of the sentencing exercise and the assessment of which is part of the process of instinctive synthesis. In so determining it is necessary to have regard to a number of factors including the legislative guide posts and the form of the maximum penalty applicable together with the standard non-parole period for offence 1 and the form 1 offences, each of which serves as an indication of the relative seriousness of the offence. Maximum penalties invite comparison between the worst possible case and the case at bar and as such, taken on balance with all the relevant factors, a yard stick, see Markarian v The Queen (2005) 228 CLR 357 at para 31 and Muldrock v The Queen at para 31.

Regard must also be had to the range and nature of the criminal conduct prescribed by the offence. Sentencing for each offence committed by the offender is governed by the provisions of the Crimes (Sentencing Procedure) Act. The Court is to take into account the aggravating and mitigating factors that are relevant and known to the Court, and other objective and subjective factors that affect the relative seriousness of the offence. These matters are in addition to any matters that are required or permitted to be taken into account.

Any matter that is a matter of aggravation must be established by the Crown beyond reasonable doubt. Matters in mitigation, however, need only be established on the balance of probabilities. The Court is not to have regard to an aggravating factor if it is an element of the offence although it is permissible to consider the extent to which a particular factor is present . The Court is not to take into account as an aggravating factor a circumstance that is an inherent characteristic of the offence itself.

I am very mindful of the impact the offences have had on the complainant but, sadly, this is nothing other than might be expected and cannot elevate the offending beyond the appropriate assessment of objective seriousness. It is necessary to have regard to the character of each assault including the degree of physical contact, degree of connection and the degree of any use of coercion.

Here the offending consisted of separate events, each serious. Each would appear to be to some degree opportunistic. Arguably the latter offence is more planned and less opportunistic. Each was of a non-specific, but it does not appear lengthy, duration. I am mindful, however, that as the Court observed in R v Gavel [2014] NSWCCA 56 sexual offending against children often occurs over a short period of time and concentrating on the duration of the offending has the capacity to minimise, if not completely ignore, the profound effects that such offending may have on a victim. The authorities have held that a short duration of a sexual assault would not ordinarily be considered as a factor that reduces the objective seriousness of an offence, Sharma v The Queen [2017] NSWCCA 58 at [56], Cowling v The Queen [2015] NSWCCA 213 and The Queen v Daley [2010] NSWCCA 223 at [48].

All of the offending occurred here in the victim’s home, indeed, either in her own bedroom or she was taken to the offender’s bedroom that he shared with the victim’s mother, Johnson v R [2016] NSWCCA 286, and thus 21A(2)(eb) applies to aggravate the offending.

In relation to the aggravating features s 21A(2)(k), the position of trust, the offender to all extents and purposes was the father of the victim since she was around five years of age and thus his repeated sexual abuse of her involved a considerable breach of trust. A child should expect and receive unconditional love, comfort, security and safety from those in their lives who assume a parental role, not to be used as a sexual object to be touched, penetrated and generally abused. The Crown urges the Court to find the agreed factor of a breach of trust pursuant to s 21A(2)(k) regardless of the fact that the offences are aggravated by the victim being under the authority of the offender at the time of offending.

In MRW v R [2011] NSWCCA 260 at para 77 Bathurst CJ (with whom James and Johnson J agreed) held that the concepts of an abuse of a position of trust, an abuse of position of authority in 21(2)(k) are different such that an abuse of a position of trust can be an aggravating factor for an offence which has an element that a child was under the offender’s authority. Thus in MRW it was held that it was open to the sentencing judge to have taken into account a breach of trust by a father towards his child even though it was an element of the offence in s 66C(2) that the child was under his authority. However, Bathurst CJ added at 78:

‘When the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so error may result with the prospect of intervention by this Court’.

In the matter at bar the ‘authority’ exercised by the offender over the victim followed from his status as her stepfather such that the abuse of his authority and abuse of the position of trust effectively arose from the same facts.

Consistent with MRW this Court will exercise caution in giving any significant weight to an abuse of trust by the offender as an aggravating factor, R v XX [2017] NSWCCA 90 at [66] and [67].

Numerous factors are relevant in considering the objective seriousness of an offence contrary to s 66A(2) and s 66C(2) of the Crimes Act, none of which alone are determinative but each of which inform the objective gravity of the offence he committed. The assessment of where the offence lies in the range of offending of its type is to be made by reference to all of the facts and circumstance of the offence and to the range of offences of its kind which come before the Court.

Specifically in relation to the 66A(2) offence I note the following. The victim was only seven or eight years of age, naïve to all matters sexual, some three or two years removed from the upper age threshold for the particular offence, and that is a matter that can properly increase the objective seriousness of the offence, see R v BJW (2000) 112 A Crim R 1. It occurred in the victim’s home. The offender was 22 or 23 years of age, he was married to the victim’s mother and the child considered him her father. The victim’s mother was absent from the home and he took the child to the seclusion of the bedroom he shared with the victim’s mother and instructed the victim to get onto the bed. Whilst wearing only underwear he grinded his penis on her body, on the outside of her clothing, and digitally penetrated her vagina, which caused her pain.

Insofar as the submission is that the act is one of digital penetration I proceed on the basis that there is no fixed hierarchy as to the seriousness of the acts which are capable of constituting an act of sexual intercourse. As authorities have repeatedly stated it is wrong to attempt to rank forms of forced sexual intercourse in a hierarchy for the purpose of determining their objective seriousness, see Doe v R [2013] NSWCCA 248 at [54]. As Bellew J said the objective seriousness of such offences is to be determined according to the entirety of the facts and circumstances of the case in question.

The offender here exploited the child’s trust in him and her vulnerability and took advantage of her youth and naivety. Insofar as it was submitted that the objective seriousness is affected by reason of the lack of violence or threats of violence offending is to be assessed by reference to what is involved and not by the absence of features which would seem serve to aggravate the seriousness of the offence, see Greenwood v The Queen. It would rarely if ever be a matter of mitigation that an offender does not commit a worse offence.

The victim was his stepdaughter. He called her into his room at a time when her mother was not home, compounding her vulnerability and demonstrating a degree of planning. The offending involved the penetration of her body, which caused her pain, while he rubbed or grinded his penis on her body for his own sexual satisfaction.

My assessment of the objective gravity of this offence is that it was comfortably in the midrange of seriousness.

In relation to the s 66C(2) offence there is no standard non-parole period for this offence at the time of the offending. I find this also to be a very serious offence in light of the following. The victim was aged only 11, noting the threshold for the offence was just under 14 years and the offender was around 26. Her mother was not home, increasing her vulnerability, and the victim was in her bedroom with the door shut with the intention of going to sleep. The offender came into the sanctity of her closed bedroom to abuse her and climbed into the child’s bed naked from the waist down. While she was pretending to be asleep he pushed his hard penis against her bottom and digitally penetrated the victim’s vagina. That penetration caused her pain and caused her to bleed. Whilst violating her body he told her that he loved her, displaying a profound level of cunning and deliberate manipulation. He left when she found the strength to tell him to get out.

So again the offender took the opportunity of the victim’s mother not being home, he entered the sanctity of her bedroom despite the door being shut, the victim no doubt in fear and apprehension proceeded to pretended to be asleep and yet he then invaded her bed, took his own clothes off, pushed his penis, naked this time, against her while penetration her vagina with his finger. This offending is very serious.

In relation to the form 1 offences they were also serious offending on a young, vulnerable child. ”

25. Her Honour noted that the Applicant had no mental health issues and that he did not come from a deprived background. Her Honour found that the Applicant had “some very belated feelings of genuine remorse for the victim”, but was doubtful that the Applicant had “truly accepted responsibility for his offending” and that he was “far more empathetic to his own situation that he finds himself in and to the effect that it has had on him, his wife and biological children than the victim herself” (ROS17).

25. With respect to the Applicant’s prospects of rehabilitation, her Honour observed that she could “not find confidently that his prospects at this time could be described as very good” (ROS18).

26. The sentencing Judge allowed a 25% discount for the utilitarian value of the Applicant’s pleas of guilty (ROS18).

27. Her Honour said with respect to the impact of sexual offences upon children (ROS18):

“It is not in issue that courts have an important role in protecting children by imposing sentences that will operate as a deterrent to those who may be inclined to engage in such conduct; that much has always been recognised. Such conduct is clearly destructive not only by reason of its potential and actual impact on the individual victim but also because of the damage occasioned to the community generally. The exposure to the extent of sexual abuse of children in our community threatens the very capacity of adults to interact in a normal, healthy fashion with children. Personal deterrence in this instance also has a role to play and the offender must be accountable for his actions.”

29. Her Honour had regard to Judicial Commission statistics and a number of recent sentencing decisions for the purpose of considering an appropriate sentence in this case (ROS18-19).

30. In determining to impose an aggregate sentence, her Honour had regard to notional accumulation, the two offences for which sentences were to be imposed, as well as the totality principle and the legislative guideposts contained in the maximum penalties and the standard non-parole period for the s.66A(2) offence (ROS19-20).

31. A finding of special circumstances was made arising from the degree of notional accumulation, the fact that it was the Applicant’s first custodial sentence and his need for support in the community upon his release from custody (ROS20).

32. Her Honour then imposed the aggregate sentence and nominated the indicative sentences referred to earlier in this judgment.

Grounds 1 and 2 - Claims of Double Counting of Factors in Determining Sentence

33. Grounds 1 and 2 may be considered together as they relate to connected issues.

Submissions

34. Mr Gow, counsel for the Applicant, submitted that the sentencing Judge had erroneously double counted two factors on sentence in a manner adverse to the Applicant. He submitted that her Honour had referred to these factors twice so that the Court should conclude that they had been taken into account for two different purposes so as to erroneously double count factors adverse to the Applicant.

35. The Crown submitted that a fair reading of her Honour’s sentencing remarks did not support the complaints contained in the first and second grounds of appeal. It was submitted that her Honour had regard once only to the fact that the s.66A(2) offence was committed in the victim’s home and that it involved a breach of trust for the purpose of imposition of sentence on that count.

Decision

36. For the purpose of assessing these grounds of appeal, it is necessary to fairly read her Honour’s entire remarks on sentence. Of course, a sentencing Judge is not required to mention, once only, particular features of the offending conduct in sentencing remarks. To mention a factor on more than one occasion is not, in itself, indicative of double counting of the factor adverse to the person to be sentenced.

37. In my view, her Honour’s sentencing remarks do not reveal double counting of these factors in a manner which is impermissible and adverse to the Applicant. Her Honour referred in a general way to a number of matters before turning specifically to the offences under s.66A(2) and s.66C(2), where the operative findings were made.

38. Her Honour referred to the fact that the s.66A(2) offence was committed in the victim’s home and that factor was not brought into account twice adversely to the Applicant. Likewise, the breach of trust issue was not brought into account twice in a manner adverse to the Applicant.

39. The decision of this Court in R v Hookey [2018] NSWCCA 147 is distinguishable from the present case. In R v Hookey, it was clear that the sentencing Judge was having regard to a factor already taken into account so as to further aggravate sentence. That is not the present case.

40. No error has been demonstrated in the sentencing Judge’s approach to the assessment of objective seriousness of the s.66A(2) offence. Her Honour concluded that this offence was “comfortably in the mid range of seriousness”. That finding was clearly open in the circumstances of the case.

41. The first and second grounds of appeal should be rejected.

Ground 3 - The Aggregate Sentence was Manifestly Excessive

Submissions

42. Counsel for the Applicant submitted that the aggregate sentence was manifestly excessive. Whilst acknowledging that the offending in question was very serious, it was emphasised that the Applicant had no prior criminal history.

43. Counsel for the Applicant accepted that sentencing statistics are of no great assistance in the absence of any exposition as to the details of the particular cases in question, noting that this was especially so in the case of an aggregate sentence: R v Knight [2015] NSWCCA 222 at [13], [88]; SS v R [2016] NSWCCA 197 at [63].

44. Counsel for the Applicant submitted that the claim of manifest excess is supported by consideration of the sentencing decisions in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56; MD v R [2015] NSWCCA 37; R v Scavera [2016] NSWCCA 145; R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90; R v CTG [2017] NSWCCA 163; XZ v R [2018] NSWCCA 76 and Beavis v R [2018] NSWCCA 248.

45. It was submitted that, after consideration of these cases, the aggregate sentence imposed upon the Applicant was unjustifiably substantial and was out of step with available authority, especially when regard was had to the Applicant’s lack of prior criminal history and his pleas of guilty.

46. Counsel submitted that the significant head sentence of 12 years most clearly bespeaks error in this case. It was submitted that the overall aggregate sentence was manifestly excessive and that this ground of appeal should be upheld.

47. The Crown submitted that the aggregate sentence imposed in this case was a substantial one, but that the offences were serious and repeated so that the aggregate sentence was not unreasonable or plainly unjust.

48. The Crown submitted that consideration of the cases relied upon by the Applicant did not support the claim of manifest excess in this case. The Crown emphasised that, apart from the complaints in the first and second grounds of appeal, the Applicant did not challenge the assessment of objective seriousness of the s.66A(2) offence (comfortably in the mid-range of seriousness) and the s.66C(2) offence (a very serious offence).

49. The Crown submitted that caution was required when comparing sentences, noting the limitations in relying on individual cases to establish a range of sentences in support of a ground of manifest excess. The Crown pointed to a recent decision of this Court in Alarcon v R [2018] NSWCCA 298, where Schmidt J (with whom Basten JA and Fagan J agreed) said at [86]:

“Manifest excess cannot, however, be established simply by pointing to other cases where lower sentences have been imposed. That is because by pointing at statistics and other decided cases, it is always possible to identify sentences imposed on other offenders, which are either more or less lenient: Vandeventer v R [2013] NSWCCA 33 at [45] …”

50. The Crown submitted that the aggregate sentence was not manifestly excessive.

Decision

51. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at 241, this Court said at [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 (1936) 55 CLR 499; [1936] HCA 40 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; Jones 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.”

52. The indicative sentence for the s.66A(2) offence took into account, as well, two Form 1 offences under s.66M(2) Crimes Act 1900. These Form 1 offences involved separate incidents of sexual abuse by the Applicant against the victim when she was aged between seven and nine years.

53. In taking the Form 1 matters into account, a sentencing Judge has regard to the Form 1 offences with a view to increasing the penalty that would otherwise be appropriate for the primary offence. The sentencing Judge ought give greater weight to the need for personal deterrence and the community’s entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]. This approach will generally lead to the imposition of a longer sentence than would otherwise be required if the Form 1 offences were not taken into account: Abbas v R at 426 [23]; RL v R [2018] NSWCCA 274 at [53]-[57]. The sentencing Court does not impose a distinct penalty for the Form 1 offences and it is not appropriate to quantify the period or periods which may attach to those offences in taking them into account on sentence for the primary offence: Abbas v R at 421 [14], 425-426 [22]. Given the nature of the Form 1 offences in this case, it may be taken that a longer sentence was appropriate on the s.66A(2) count to give effect to these principles.

54. The Applicant’s offending constituted a prolonged period of sexual abuse by a stepparent against a girl aged between about seven or eight years and 11 years. This was grave offending over a period of time. The offences were not isolated or opportunistic in the sense of being limited to one occasion and undertaken on the spur of the moment.

55. The offences constituted a considerable breach of trust in circumstances where the Applicant was the victim’s stepfather whom she regarded as being her parent. The offending involved a misuse of paternal affection to facilitate the commission of serious sex offences against a young girl. The victim impact statement of the young girl emphasised the effect upon her of abuse by a person whom she regarded as a parent at a very young age.

56. In R v Gavel, this Court said at 483 [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].”

57. The victim was entitled to feel safe in her own home, but was preyed upon by the Applicant in the commission of these offences.

58. The s.66A(2) offence required the victim to be less than 10 years old and the victim in this case was aged significantly less at the time of the offence, being seven or eight years old. Likewise, the s.66C(2) offence required the victim to be less than 14 years old and the victim was just 11 years old at the time of that offence. In considering the objective seriousness of these offences, the younger the child (compared with the relevant age limit), the more serious the offence: R v KNL (2015) 154 A Crim R 268; [2005] NSWCCA 260 at [42]-[43].

59. Her Honour had regard to the Applicant’s absence of prior criminal history. Despite the gravity of the Applicant’s persistent offending, he appeared to have limited insight into his actions in a way which understandably led the sentencing Judge to make a cautious assessment of his prospects of rehabilitation.

60. A substantial part of the Applicant’s submissions related to what were said to be comparative cases and the contention that those cases support the claim of manifest excess in the decision under appeal.

61. With the significant caveat in Alarcon v R (see above at [49]), I turn to the cases relied upon by the Applicant.

62. In R v Gavel, the offender pleaded guilty to three offences of aggravated sexual intercourse contrary to s.66A(2) Crimes Act 1900, one offence contrary to s.61M(2), and a further offence of possessing child abuse material. In addition, there were further aggravated indecent assault offences (as well as other offences) taken into account on a Form 1. The complainant was eight years old, and the offences were committed over a four-month period when the offender was babysitting her. The first and third aggravated sexual intercourse offence involved the offender performing cunnilingus on the complainant: 474 [23]-[24], 474-475 [29]; and the second offence involved the offender inserting two fingers into her vagina: 474 [27]-[28].

63. Following a successful Crown appeal, the Court imposed an aggregate term of imprisonment of 14 years, with a non-parole period of nine years and six months: 486 [135]. In resentencing the offender, the Court acknowledged that he had no prior criminal history: 477 [47]. For the first aggravated sexual intercourse offence, taking into account the relevant Form 1 offences, the indicative sentence imposed was imprisonment for 10 years, with a non-parole period of seven years and six months. With respect to the second and third offences, the indicative sentences imposed were identical, being imprisonment for eight years, with a non-parole period of six years: 485 [130](b)-(d).

64. In R v XX, the offender pleaded guilty to three offences involving the sexual abuse of his four-year old daughter, being an offence contrary to s.66A(2) Crimes Act 1900, aggravated indecent assault, and an aggravated act of indecency with a person under 10: 134 [4]-[6]. All of the offending conduct occurred within a day when the complainant was about four years old. The offender admitted that on that occasion he went into his daughter’s room when she was sleeping, took off her underwear and licked her on the vagina. The complainant woke up, and the offender rubbed his penis on the outside of her vagina, before masturbating and ejaculating on her chest: 135-136 [11].

65. In allowing the Crown appeal, the offender was resentenced to an aggregate term of imprisonment of nine years, with a non-parole period of six years. For the s.66A(2) offence, following a 25% discount for the plea, the indicative sentence was seven years and six months, with a non-parole period of five years: 151 [85]-[86]. In resentencing, the Court adopted the finding of the primary Judge that the offender, despite having convictions for dishonesty offences and breaching an apprehended violence order, was a person of good character: 136 [16], 151 [84].

66. In R v CTG, the offender pleaded guilty to various sexual abuse offences against his niece, and to a further unrelated offence of unauthorised possession of a pistol. The most serious offending conduct was that the offender had sexual intercourse with his niece, then three years old, on five separate occasions within a four-month period. These offences were contrary to s.66A(1) Crimes Act, and carried a maximum penalty of imprisonment for 25 years, and a standard non-parole period of 15 years: [1]. The five offences occurred in similar circumstances, whereby the offender would place his erect penis in the complainant’s mouth and he would capture the incident as a photograph on his camera: [11]-[17].

67. The Court, in allowing the Crown appeal, resentenced the offender to an aggregate term of imprisonment of 12 years, with a non-parole period of eight years: [103]-[104]. For the five sexual intercourse offences, the indicative sentences were identical, being imprisonment for eight years and three months, with a non-parole period of five years: [102]. The Court had regard to the offender’s prior conviction for an offence in similar terms to one of the index offences the subject of the appeal (namely using a child under 14 years to make child abuse material). This disentitled the offender to leniency, and meant that more weight ought be given to specific deterrence. Ultimately, the Court found that “the moral culpability of the [offender] was substantial and his subjective case was not particularly strong”: [89]-[90], [92], [99]-[100].

68. In MD v R, the offender pleaded guilty to two counts of aggravated sexual intercourse with his daughter, then aged eight, contrary to s.66A(2) and on the second count, requested that an offence of indecent assault be taken into account on a Form 1: [1]-[2]. The offending took place within a short period of time after the complainant had finished bathing. The complainant had started to get dressed when the offender forced her head towards his penis, and then inserted the penis into her mouth for a few seconds. He then turned her around and inserted his penis between her buttocks, before rubbing it up and down (Form 1 offence). The offender then sat down on the toilet, and again, forced her head towards his penis before inserting it into her mouth for about two seconds: [8]-[10].

69. The offender appealed against his sentence on the basis that the sentencing Judge had not given effect to her finding of special circumstances. In allowing this sole ground of appeal, the offender was resentenced for the first aggravated sexual intercourse offence to a term of imprisonment of nine years with a non-parole period of six years and three months, and for the second offence, taking into account the Form 1 offence, to a term of nine years and nine months, with a non-parole period of six years and nine months. The Court noted that the offender had no record of prior criminal convictions: [15] and considered that some accumulation was appropriate: [72]. The offender was resentenced to a total effective term of imprisonment of 10 years and three months, with a non-parole period of seven years and three months: [73].

70. In R v Scavera, the offender pleaded guilty to two charges of aggravated sexual intercourse with a child under 10, being a six-year old boy who had been diagnosed as having autism spectrum disorder. The offender also pleaded guilty to aggravated indecent assault, and to possessing child abuse material: [3]. The offender was tasked with babysitting the young boy, and in a timeframe of between half an hour to an hour, he performed three separate sexual acts upon him. The first act was the offender performing oral sex on the complainant’s penis, the second involved digitally penetrating the complainant’s anus, and the third involved the offender masturbating and bringing his penis into contact with the complainant’s bottom (the aggravated indecent assault). The offender recorded all of these acts on his iPad: [8]-[11]. The offender had a previous conviction for an indecent assault on a victim under the age of 10. The offender’s psychological report, tendered by his own counsel, suggested a high risk of future sexual recidivism: [23], [72].

57. In allowing the Crown appeal, for the first intercourse offence, the offender was resentenced to imprisonment for seven years and six months, with a non-parole period of four years and six months. For the second intercourse offence, he was resentenced to a fixed term of imprisonment for four years. For the aggravated indecent assault which followed the first two offences, he was resentenced to a fixed term of imprisonment for two years and nine months. The total effective term of imprisonment imposed was for 10 years, with a non-parole period of seven years: [96]-[97].

58. In XZ v R, the offender pleaded guilty to various sexual offences against two complainants, both being his stepgranddaughters. The most serious charges were two offences of having sexual intercourse with a child under the age of 10 years – the first against the eldest stepgranddaughter when she was aged nine, contrary to s.66A(2) Crimes Act 1900 and the second against the younger stepgranddaughter when she was aged eight, contrary to s.66A(1). The first offence involved the offender digitally penetrating the complainant’s vagina. This caused her pain, and she later wiped her vagina and saw that there was blood on it: [9]. The second offence against his younger stepgranddaughter involved the complainant sucking the offender’s penis for a short period of time whilst she was under the offender’s desk retrieving a toy: [25]. For both these offences, the offender had asked for various offences to be taken into account on a Form 1. These Form 1 offences included grooming, indecent assault and inciting a child to commit an act of indecency: [6].

59. The sentencing Judge had imposed an aggregate sentence of imprisonment for 15 years, with a non-parole period of 10 years and six months. The indicative sentence for both the sexual intercourse offences was imprisonment for 12 years, with a non-parole period of eight years. On appeal, the offender contended that his sentence was manifestly excessive: [4]-[5].

60. In dismissing the appeal, the Court kept in mind that the indicative sentences on the sexual intercourse offences took into account significant additional offences on the Form 1. The Court stated that the offender was “active” and “predatory” and was unlikely to cease if there had been no complaint: [63]-[64]. The Court also acknowledged that the offender had no previous criminal history: [34]. Overall, although “substantial”, the aggregate sentence imposed reflected the totality of the offending: [76]-[78].

61. In Beavis v R, following a trial, the offender was convicted of two counts of aggravated indecent assault, contrary to s.61M(1) Crimes Act 1900, and three counts of having sexual intercourse with a child of or above the age of 10 years, and under the age of 14 years, under his authority, contrary to s.66C(2). The offences were all committed on one night against a school friend of the offender’s daughter when she had slept over at the offender’s house: [2], [6].

62. The offender was found guilty of fondling the complainant’s breasts before moving on to fondle her vagina. The offender then proceeded to insert his fingers into the complainant’s vagina and “doing the same thing over and over, for about an hour”, before repeating this conduct and rubbing the complainant’s clitoris shortly before the complainant got up to leave for the toilet: [8]. Upon returning from the toilet, the offender told the complainant to watch the movie, and he put his hands down her pants and once again placed his fingers in her vagina: [9].

63. The Court was called upon to resentence the offender, having found that the primary Judge committed a specific (but for the purposes of this exercise, irrelevant) error in the sentencing process: [238]. The offender had no prior convictions but did not receive the benefit of a discount as he proceeded to trial: [226]. The offender was resentenced to an aggregate term of imprisonment of seven years with a non-parole period of four years and two months. For the three sexual intercourse offences, sequentially, indicative sentences of imprisonment of four years and three months, two years and six months, and three years and three months were imposed: [286].

64. I do not consider that these cases serve to demonstrate that the aggregate sentence in this case was manifestly excessive. They constitute several sentencing decisions in the particular facts of each case. A range of sentences is not established against which the sentence in the present case can be usefully measured.

65. It may be said that the aggregate sentence was a substantial one in this case. However, the offending was serious and repeated involving a young girl in a position of trust where the Applicant was her stepfather. I am not persuaded that the aggregate sentence was unreasonable or plainly unjust. The Applicant has failed to demonstrate that the aggregate sentence was manifestly excessive. I would reject the third ground of appeal.

Conclusion

80. The Applicant has not made good any of his grounds of appeal.

81. I propose the following orders:

1. grant leave to appeal against sentence;

2. appeal against sentence dismissed.

82. WRIGHT J: I agree with Johnson J.

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Decision last updated: 18 October 2019