CH v R

[2019] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	CH v R [2019] NSWCCA 68
Hearing dates:	13 February 2019
Date of orders:	01 April 2019
Decision date:	01 April 2019
Before:	Hoeben CJ at CL at [1] Schmidt J at [2] Adamson J at [94]
Decision:	(1)   Leave to appeal granted; and (2)   Appeal dismissed.
Catchwords:	CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Whether sentencing judge failed to have proper regard to maximum penalties of Form 1 offences — Whether sentencing judge erred in giving limited weight to evidence of remorse — Whether sentencing judge erred in application of principle of totality — Whether aggregate sentence manifestly excessive — Leave to appeal granted — Appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M, 61O, 66A, 66B, 91G Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 33 Criminal Procedure Act 1986 (NSW), ss 165, 166, 167, 168
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bao v R [2016] NSWCCA 16 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Butters v R [2010] NSWCCA 1 Carlton v The Queen (2008) 189 A Crim R 332 Collins v R [2010] NSWCCA 13 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499 Imbornone v R [2017] NSWCCA 144 Kerr v R [2106] NSWCCA 218 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 R v MJB [2014] NSWCCA 195 TO v R [2017] NSWCCA 12; 265 A Crim R 191 Van Zwam v R [2017] NSWCCA 127 ZA v R [2017] NSWCCA 132
Category:	Principal judgment
Parties:	CH (Applicant) Regina (Crown)
Representation:	Counsel: I Nash (Applicant) K Ratcliffe (Crown)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2016/387068
Publication restriction:	NilNon-Publication order re identity of complainant and offender
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: --- Date of Decision: 12 December 2017 Before: Bright DCJ File Number(s): 2016/387068

Judgment

1. HOEBEN CJ at CL: I agree with Schmidt J and the order which she proposes.

2. SCHMIDT J: CH pleaded guilty to offences committed against his daughter, contrary to various provisions of the Crimes Act1900 (NSW). Bright DCJ sentenced him to an aggregate sentence of 20 years imprisonment, with a non-parole of 13 years, after giving him a 25% discount for his early plea. That reflected a starting point of some 26 years, 8 months. He now seeks leave to appeal that sentence

3. The offences for which he was sentenced and the other offences taken into account under s 33(2)(b), Crimes (Sentencing Procedure) Act 1999 (NSW), on some of those offences, were:

1. sequence 4 — s 91G(1)(a) Crimes Act, using child to produce child abuse material — attracting a maximum penalty of 14 years imprisonment with a standard non-parole period of 6 years;

2. sequence 6 — s 61O(2A) Crimes Act, incite act of indecency with child under 16 years — attracting a maximum penalty of 10 years imprisonment with no standard non-parole period;

3. sequence 9 — s 61M(2) Crimes Act, indecent assault on child under 16 years — maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years, with a further such offence taken into account on a Form 1 under s 33 of the Crimes (Sentencing Procedure) Act;

4. sequence 18 – s 66B Crimes Act, attempt sexual intercourse with a child under 10 years – attracting a maximum penalty of 25 years imprisonment, with a standard non-parole period of 10 years and with three further offences of incite act of indecency under s 61O(2A) Crimes Act taken into account on a Form 1, the maximum penalties for which were 10 years, with no standard non-parole period;

5. sequence 1 — s 66A(1) Crimes Act, sexual intercourse with a child under 10 years — attracting a maximum penalty of life imprisonment, with a standard non-parole period of 15 years and a further offence of incite act of indecency under s 61O(2A) Crimes Act taken into account on a Form 1, the maximum penalty for which was 10 years, with no standard non-parole period;

6. sequence 15 — s 66A(1) Crimes Act, sexual intercourse with a child under 10 years — attracting a maximum penalty of life imprisonment, with a standard non-parole period of 15 years and a further offence under s 61M(2) Crimes Act of indecent assault on child under 16 years taken into account on a Form 1;

7. sequence 16 — s 61O(2) Crimes Act, incite child under 10 years to act of indecency — attracting a maximum penalty of 7 years imprisonment with no standard non-parole period; and

8. sequence 17 — a further offence under s 66A(1) Crimes Act, sexual intercourse with a child under 10 years — attracting a maximum penalty of life imprisonment, with a standard non-parole period of 15 years, with a further offence under s 61M(2) Crimes Act of indecent assault on child under 16 years taken into account on a Form 1.

4. The grounds on which the applicant seeks leave to appeal his aggregate sentence are:

“1.   the learned sentencing judge erred by failing to have proper regard to maximum penalties for offences on a Form 1.

2.   Error in giving “limited weight to the evidence of remorse” (failure to make finding as to remorse or not of the applicant).

3.   Error in application for the principle of totality.

4.   Manifest excess.”

Ground 1 – failing to have proper regard to the maximum penalties for the Form 1 offences

5. There is no issue that the facts which the parties agreed on sentence led Bright DCJ, correctly, to find that the applicant’s offending had involved very grave criminality, he having deliberately exploited the vulnerability of his daughter, when she was aged 4 to 5 years, in the pursuit of his own sexual interests.

6. Her Honour took the Form 1 offences into account in accordance with the principles discussed in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, which required that:

“[42] … although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences … These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.”

7. It is the applicant’s case, however, that her Honour erred because the Crown provided a table of offences which incorrectly identified the penalties for his ss 61M(2) and 61O(2A) offences to be 10 years, when they were only 2. That followed from the provisions of ss 165, 166 and 167 of the Criminal Procedure Act1986 (NSW), because those offences were before the District Court as indictable offences, which were being dealt with summarily.

8. This was understandably not a point taken on sentence, because it has no statutory foundation.

9. Section 166 specifies a procedure to be followed when on committal or sentence of a person charged with an indictable offence, he or she has been charged with “any back up offence or related offence”, as the applicant was. A “related offence” is defined in s 165 to mean an offence:

“(a)    that is:

(i)    a summary offence, or

(ii)    an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and

(b)    that arises from substantially the same circumstances as those from which the first indictable offence has arisen,

but does not include a back up offence.”

10. The applicant entered pleas to his offences, so that on sentence his related offences also had to dealt with by the Court, “unless to do so would not be in the interests of justice”: s 167(1)(b). Neither party contended that to be the case. Instead, they agreed that these offences would be dealt with by the Form 1 process.

11. Accordingly, contrary to the case advanced for the applicant on appeal, neither the definition in s 165, nor the provisions made in ss 166 and 167 reduced the maximum penalties for the indictable offences dealt with under the Form 1 procedure to those which would have applied to those offences, had they been dealt with summarily in the Local Court.

12. What s 33(2)(b) empowered Bright DCJ to do on sentencing the applicant was to:

“take a further offence into account in dealing with the offender for the principal offence:

(a)    if the offender:

(i)    admits guilt to the further offence, and

(ii)    indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b) if, in all of the circumstances, the court considers it appropriate to do so.”

13. The result of that exercise had to be that the sentences imposed for the offences where other offences were taken into account under the Form 1 process, were increased in the way explained in the guideline judgment at [42].

14. This procedure required that Bright DCJ take into account, as her Honour did, the matters for which the applicant had so admitted his guilt, with a view to increasing the penalty that would otherwise be appropriate for the applicant’s offence, by giving greater weight to first, the need for personal deterrence, which the commission of the other offences indicated ought to be given greater weight, by reason of the course of conduct in which the accused had engaged; and secondly, to the community’s entitlement to extract retribution for the applicant’s other serious offences, for which no punishment would otherwise be imposed upon him.

15. While s 33(3) precluded the penalty Bright DCJ arrived at exceeding the maximum penalty that could have imposed on the applicant for the offence on which the Form 1 offence was taken into account, her Honour also had to take account of the maximum penalty and any standard non-parole period which applied to the Form 1 offence, in arriving at a conclusion as to how much the sentence which would otherwise be imposed on the applicant, should be increased by.

16. This aspect of the statutory scheme reflects that what an offender is charged with is the result of the exercise of prosecutorial discretion. The statutory scheme does not seek to interfere with the consequences of the exercise of that discretion, in the provisions which it made in ss 165, 166 and 167 of the Criminal Procedure Act, or in s 33 of the Crimes (Sentencing Procedure) Act.

17. While in Collins v R [2010] NSWCCA 13 and other cases on which the applicant relied, the offender was sentenced for offences which could have been dealt with in the Local Court, in which event s 168(3) applied, it providing that the court then “has the same functions, and is subject to the same restrictions and procedures, as the Local Court”, that is not what occurred in the applicant’s case. In the result, s 168(3) simply did not apply to him on sentence.

18. While, as s 33(2)(a) required, the applicant admitted his guilt of the Form 1 offences, which he asked the Court to take into account on sentence for other offences, he did not plead guilty to any of those offences. Nor was he sentenced for them.

19. Accordingly, this ground cannot succeed.

Ground 2 – limited weight given to remorse

20. I am also satisfied that this ground must fail.

21. At trial the case advanced for the applicant was that he was genuinely remorseful for his offending and that his initial denials should not detract from what was contained in the psychologist’s report, as to his expressions of remorse.

22. The Crown put in issue the credibility of the applicant’s expressions of remorse and submitted that they had to be approached with caution, untested as they were, because he had exercised his right not to give evidence.

23. The applicant’s account to the psychologist included that despite his grave offending against his young daughter, he had no deviant sexual interests; that his sexual interest was in females; and that his initial conception of his offending had been related to curiosity by his daughter, who was then aged only 4 years, in circumstances where she had asked him a question about his penis which had played on his mind and had then resulted, a few days later when he was intoxicated with methylamphetamine, with the commencement of the offending which he filmed for reasons unknown to him. The applicant also described then placating himself with the thought that his daughter was young and probably would not remember his abuse, which the psychologist considered reflected that he required specific intervention around boundaries, challenge distortions and appropriate sexuality.

24. The report went on:

“In hindsight, [CH] offered regret and remorse for his behaviour along with an understanding of the impact his behaviour had on the victim. He stated that "I turned into a monster with methamphetamine. I'd never had that hunger before, but that's a reason not an excuse". He acknowledged that he was aware he had harmed his daughter "for the rest of her life". He also spoke of his behaviour removing him from his children such that "I'm not going to be there to teach my son to drive, I won't be there when they fall over. I've hurt so many people and I have taken my kids out of my parents lives too". [CH] was loudly sobbing when recounting this information suggesting genuine emotional reactions to his offending and the repercussions.”

25. The psychologist considered that:

“Prior to [CH]’s involvement in excessive methamphetamine use his psychosexual history appeared healthy and appropriate. However, the current offences occurred against a background of poorly managed methamphetamine induced hypersexuality for [CH]. There was a clear escalation in his sexual drive as suggested by his foray into daily pornography use and masturbation during periods of intoxication, which had previously been more irregular. Specifically, he spoke of a sexual "hunger" whilst under the effect of methamphetamine. [CH] engaged in some rationalisations around his daughters young age such that she may not remember the abuse and that he was teaching her about sexuality, which allowed him to engage in uncharacteristic offences and supersede his morality. Given his otherwise reasonable sexual boundaries and history, [CH]'s risk of recidivism is considered low if he can maintain abstinence from methamphetamine.”

26. In the letter his parents’ wrote, it was relevantly said that the applicant was “so remorseful of what has occurred while he was under the influence of drugs, also how much it has affected his children. Also us as his parents and extended family”.

27. In his sister’s letter, it was said that the applicant was not the man he had been the previous year and that “he is a different person and I know this is mainly due to feeling utterly remorseful, regretful and so ashamed” and that he took full responsibility for his actions.

The sentencing judgment

28. Bright DCJ’s account of the agreed facts was:

“SEQUENCE 4 S 91G 1(a) USE CHILD IN CARE TO PRODUCE CHILD ABUSE MATERIAL

In late 2016, on a date [J] was at work, the offender, only wearing shorts, filmed himself engaged in the following sexual behaviour with the victim, in a bedroom, while she wore only her mother’s dress.

SEQUENCE 6 S61A 2(a) INCITE ACT OF INDECENCY WITH CHILD UNDER 16 YEARS FILMED

After 10 minutes of encouragement, the offender had the victim grab his penis with her hand and masturbate him. After two minutes of that, he took hold of his own penis and masturbated himself in front of her.

SEQUENCE 9 S 61M (2) INDECENT ASSAULT ON CHILD UNDER 16 YEARS

FORM 1 TO SEQUENCE 9 (SEQUENCE 7) S 61M (2) INDECENT ASSAULT ON CHILD UNDER 16

Six minutes later, the offender placed his fingers onto the victim’s vagina over her mother’s dress and rubbed her there (sequence 7). Two minutes later, the offender placed his hand under her dress and used his thumb to rub her bare vagina (sequence 9).

FORM 1 (TO SEQUENCE 18) SEQUENCE 10 S 61O (2A) INCITE ACT OF INDECENCY WITH CHILD UNDER 16 YEARS FILMED

FORM 1 TO SEQUENCE 18 SEQUENCE 11 S 61A (2A) INCITE ACT OF INDECENCY WITH CHILD UNDER 16 YEARS FILMED

FORM 1 TO SEQUENCE 18 SEQUENCE 13 S 61O (2A) INCITE ACT OF INDECENCY WITH CHILD UNDER 16 FILMED

Five minutes later the offender again encouraged the victim to masturbate him and she put her hand down his shorts and began doing so. Sequence 10. After two minutes the offender picked up small child’s doll that had no clothes on. He said to the victim, “Help daddy fuck the baby”. The victim placed the doll onto the offender’s penis and he asked her, “Fast or slow?”. The victim said, “Fast”, and he mocked such intercourse. The offender then said, “When daddy’s coming, where do you want it to go?”. The victim then manipulated the offender’s penis so that it was pointing at the doll’s face. The offender said, “Yeah, drink it all then do you want me to turn it around and fuck it in the arse?” The victim said, “Yes”. The offender then incited the victim to perform cunnilingus on the doll. Sequence 11. After half an hour of filming, the offender said his penis hurt and incited the victim to rub it for him and she did (sequence 13).

The reactions of the victim, as viewed on the video, establish familiarity with sexual acts and sexualised language.

SEQUENCE 18 S 66B (1) ATTEMPT SEXUAL INTERCOURSE WITH CHILD UNDER 10

Three minutes later the offender removed his and the victim’s clothes. He lay down on the bed and placed the victim on top of his waist so she was straddling him. She said, “Don’t put it in”. He said, “No, I won’t put it all in” and proceeded to slide her vagina over his penis and used his hand to manipulate his penis near her vagina. He placed some lubricant on his penis and turned the victim around so that she was facing away from him, though still straddling his waist. He again manipulated his penis near her vagina. After several minutes, she stood up and said, “Can I hop off now, my bum is sore?”.

SEQUENCE 1 S 66A (1) SEXUAL INTERCOURSE WITH CHILD UNDER 10

FORM 1 TO SEQUENCE 1 (SEQUENCE 14) S 61M (2) INDECENT ASSAULT ON CHILD UNDER 16

The offender laid the victim down on her back on the bed and spread her legs. Her vagina was bright red in colour. He put a finger in her anus and with his other fingers rubbed her clitoris (sequence 14).

SEQUENCE 15 S 66A (1) SEXUAL INTERCOURSE WITH CHILD UNDER 10

FORM 1 TO SEQUENCE 15 (SEQUENCE 3) S 61M (2) INDECENT ASSAULT ON CHILD UNDER 16

After a minute of that, the offender took his penis in his hand and placed it at the entrance to the victim’s vagina and pushed the head of his penis into it past the labia majora. After a minute of that, he returned to rubbing her vagina with his fingers (sequence 3) and stopped filming shortly afterwards.

It is agreed that the offender appeared calm and manipulative for the duration of the footage. It is an agreed fact, for the purposes of context only, that the complainant complained of the behaviour that bases sequence 15 to have occurred on another separate occasion.

The filming of the above acts is the basis of sequence 4.”

29. Her Honour also outlined the circumstances in which the applicant’s offences came to light, when the video camera he had used to film his offences was inspected and how he came to make the admissions which eventually led to the entry of his pleas. Her Honour noted that initially, however, having been shown the footage he had taken of his offences, he said that he had no memory, offering his methylamphetamine use as a possible explanation.

29. Her Honour also outlined the accounts which the victim gave police, which formed the basis of three of the offences charged, involving vaginal intercourse, which the applicant did not record.

30. Bright DCJ also dealt with the evidence of the applicant’s subjective circumstances, which included the psychologist’s report and letters from his parents and sister.

31. Her Honour noted that the psychologist’s report indicated that the applicant had given a history of having had a normal upbringing, but with his father enforcing a strict study regime, which led to his later drug use. He had no difficulty with schooling to year 12, or with employment throughout his life, until terminated from a long term position in November 2016, due to poor performance related to his methylamphetamine use.

32. The applicant had two children with his partner, with whom he had used methylamphetamine, the youngest being his victim. Her Honour noted that it was the use of that drug which had increased his sexual drive and had led to hypersexuality.

33. The applicant also reported cannabis use from age 18 years and weekly to bi-weekly methylamphetamine use when he was aged 36 and 37 years and before going into custody, use often 5 times a week.

34. Her Honour also noted that the psychologist considered that around the time of his offending, the applicant would have met the criteria for stimulant use disorder, but that he was not then mentally ill. He was also functioning adequately in custody and she considered that he was then at a low risk of re-offending, if he could maintain abstinence from methylamphetamine. It was also stated that:

“[CH] offered regret and remorse for his behaviour, along with an understanding of the impact his behaviour had on the victim”.

36. Her Honour also noted that the psychologist’s findings were summarised to be:

“Prior to [CH]’s involvement in excessive methylamphetamine use, his psychosexual history appeared healthy and appropriate. However, the current offences occurred against a background of poorly managed methamphetamine induced hyper sexuality from [CH]. There was a clear escalation in his sexual drive as suggested for his foray into daily pornography use and masturbation during periods of intoxication, which had previously been more irregular.

Specifically he spoke of a sexual ‘hunger’, whilst under the effect of methylamphetamine. [CH] engaged in some rationalisations around his daughter’s young age such that she may not remember the abuse and that he was teaching her about sexuality which allowed him to engage in uncharacteristic offences and supersede his morality.

Given his otherwise reasonable sexual boundaries and history, [CH’s] risk of recidivism is considered low if he can maintain abstinence from methamphetamine”.”

37. Bright DCJ, however, considered that the applicant had attempted to rationalise his behaviour, which reflected that he still had some limited insight into the grave criminality associated with his offending. As to remorse her Honour concluded that:

“The offender has expressed his remorse to the psychologist, as well as his family members. In circumstances where no evidence has been given on oath before me, I give such evidence limited weight. See R v Imbornone 2017 NSWCCA 144.”

The conclusion that limited weight could be given to remorse was open

38. On appeal, the applicant’s case was that s 21A(1) required the Court to take into account mitigating factors “relevant and known to the court” and that s 21A(3) required that the mitigating factors to be taken into account in determining the appropriate sentence included:

“(i)    the remorse shown by the offender for the offence, but only if:

(i)    the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)    the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),”

39. The section thus did not require an offender to give evidence on sentence, in order to establish remorse: Butters v R [2010] NSWCCA 1 at [16]–[17]. Rather, as the applicant had, an offender had to provide evidence that he or she had accepted responsibility for his or her actions, had acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage, as a statutory precondition to reliance on remorse as a mitigating factor.

40. It was also contended for the applicant that this “does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section”: at [17].

41. It was further contended that, her Honour’s statement that “in circumstances where no evidence has been given on oath before me, I give such evidence limited weight” failed to disclose whether or not she had accepted that the applicant was remorseful. That was submitted to be contrary to the requirements of s 21A, relying on Van Zwam v R [2017] NSWCCA 127. Furthermore, if her Honour had accepted that there was evidence of remorse she had failed to explain the manner in which it had been taken into account, as she was obliged to do.

42. These submissions may not be accepted. Not only did her Honour accept that the evidence established that the applicant had expressed remorse, in resolving what lay in issue between the parties, she explained that what he had said could be given limited weight, because he had elected not to give evidence, so that he could not be tested on what he had told the psychologist and others.

43. Contrary to the case advanced for the applicant, this was not a case such as Van Zwam, where at [111] it was found that while the sentencing judge was not bound to accept the evidence of remorse contained in an affidavit, any more than he would have been bound to accept oral testimony from an offender, the failure to appreciate that the affidavit was evidence, led him into the error of acting on a wrong principle.

44. In the applicant’s case it was the credibility of what he had told others which was in issue, because unlike in Van Zwam, the applicant did not himself give evidence of his remorse.

45. This was resolved by her Honour accepting that the applicant had expressed remorse, but that the evidence about what he had so said would be given limited weight, because it could not be tested. There was no error in that approach.

46. In Imbornone v R [2017] NSWCCA 144, the authorities which deal with how remorse is to be assessed arose for consideration. There it was observed:

“55 His Honour did not conclude that, for there to be evidence of remorse the applicant was obliged to give evidence. Rather, he found that the evidence that had been provided by the applicant on this aspect of the matter – that of the untested hearsay claim to Dr Bench – was insufficient for him to find on the balance of probabilities that the applicant was in fact remorseful in the way referred to in s 21A(3)(i). His Honour’s conclusion is well supported by authority.

56    This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities:

(1)    Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R vQutami [2001] NSWCCA 353 at [58] – [59].

(2)   Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R vPalu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R vElfar [2003] NSWCCA 358 at [25]; R vMcGourty [2002] NSWCCA 335 at [24] – [25].

(3) It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitznerv R [2010] NSWCCA 314 at [33].

(4)    If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro vR [2006] NSWCCA 350 at [17]–[19].

(5)   Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see VanZwamv R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, “to treat this evidence with anything but scepticism represents a triumph of hope over experience”: R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].”

47. It was there concluded that there was good reason for the sentencing judge to have declined to accept the offender’s self-serving assertions to a psychiatrist about remorse. They included his awareness of the purpose for which the report would be put; his failure to give evidence, in order that the sentencing judge could assess his demeanour and the genuineness of his asserted remorse; and the differing accounts the applicant had given about matters of significance, which called into question his veracity and reliability.

48. Likewise in this case, given what was in issue between the parties on the question of remorse, Bright DCJ had to take care in assessing the evidence which went to remorse.

49. In resolving what was raised on appeal, care must also be taken to consider what Bright DCJ actually concluded about the evidence relied on by the applicant, as satisfying the requirements of s 21A(3)(i).

50. Contrary to the applicant’s case, by what her Honour said, it is apparent that she accepted that there was evidence of remorse, which she took into account, but concluded that it could be given little weight, in the absence of the applicant having evidence given on oath, which could be tested.

51. That conclusion was well open on the evidence.

52. Undoubtedly, the letters from the applicant’s family members reflected the authors’ opinions, but they had to be considered in light of what the applicant told the psychologist, the Crown case being that what he had then said did not establish remorse, but rather a selfish reflection of what his offending would result in him missing out on.

53. The case advanced for the applicant on appeal was that the criticism that he had not given evidence was accepted, but it was urged that it would be concluded that he was remorseful, given the genuine emotions described in the psychologist’s report, supported as that was by letters from his family members and the entry of the plea.

54. It was also contended that as to insight, he should be considered to be an untreated sex offender, who had not yet had the opportunity to participate in any programs, but that it would not be concluded he had engaged in any victim blaming.

55. The Crown’s case included that what the applicant relied on did not establish insight, but an element of victim blaming, without explanation given for his offending, other than his drug use. Further, that his accounts were not consistent with the evidence of his offending, but reflected a refusal to acknowledge his purpose in filming the victim as he had. The Crown also submitted what the applicant did had not involved him in teaching his 4 or 5 year old daughter about ”sexuality”, as he also said. The nature of his repeated penetrations, for his own sexual gratification, including persisting with his offending even when the child asked him to stop and his denial of attraction to child pornography, which was inconsistent with having filmed his offences as he did, meant that his credibility was in issue and that his untested, self-professed claims of being remorseful would not be accepted.

56. Given the requirements of s 21A(3)(i) the explanations which the applicant gave the psychologist about his offences, particularly as to the reasons for and circumstances of his very grave and repeated offending against his 4 year old child, were both equivocal and contradictory. What the applicant had to establish for his remorse to be taken into account as a mitigating factor was not only that he was genuinely remorseful for his offences, but that he had also accepted responsibility for his actions and had acknowledged the injury, loss and damage which he caused his young child, as s 21A(3)(i) also required.

57. her Honour was entitled to give little weight to the applicant’s expressions of remorse. This ground has not been made out.

Ground 3 – totality

Ground 4 – manifest excess

58. It is convenient to deal with these grounds together.

59. To succeed on these grounds the applicant has to establish that the sentencing judge has made an error in the exercise of the sentencing discretion: House v The King (1936) 55 CLR 499 at 505. If specific error is not shown, the applicant must establish that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 ; [2005] HCA 25 at [25]. An alleged failure to attribute sufficient weight to an issue at sentence does not involve House v The King error: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [22] and [53]..

60. Imposition of an aggregate sentence may not to be used to minimise the offending conduct; to obscure or obliterate the range of offending conduct; or the totality of the offending for which an offender is being sentenced: R v MJB [2014] NSWCCA 195 at [58]–[60].

61. In approaching the resolution of what lies issue on these grounds, it must thus be borne in mind that this Court will not interfere in the exercise of a sentencing judge’s discretion as to questions of accumulation, concurrence and totality of sentences, absent error of principle, or that the sentence imposed was manifestly excessive, being established: Kerr v R [2106] NSWCCA 218 at [108].

62. In my view both grounds must fail, because the applicant has failed to establish any error of principle or that the aggregate sentence imposed on the applicant was manifestly excessive.

The aggregate sentence imposed

63. Her Honour imposed an aggregate sentence on the applicant, having given indicative sentences as follows:

“Sequence 004 use child to produce child abuse material pursuant to s 91G (1A) of the Crimes Act, the total term of three years with a non-parole period of two years. The starting point for that sentence was four years, discounted by 25%.

Sequence 006 incite act of indecency with child under 16 years (filmed) s 61A (2A) of the Crimes Act. The total term of two years and three months imprisonment. The starting point for that sentence was three years discounted by 25%.

Sequence 009 indecent assault on child under 16 years, taking into account a further offence of indecent assault pursuant to s 61M(2) on a Form 1. The total term of three years with a non-parole period of two years. The starting point for that sentence was four years discounted by 25%.

The count on indictment (formerly sequence 018) attempt sexual intercourse with child under 10 pursuant to s 66B (1) of the Crimes Act, taking into account three further offences of incite act of indecency with child under 16 years (filmed) (sequences 10, 11 and 13), the total term of five years and three months imprisonment. A non-parole period of three years and five months. The starting point for that sentence was seven years discounted by 25%.

Sequence 001 sexual intercourse with a child under 10 years pursuant to s 66A (1), taking into account one further offence of indecent assault on child under 16 pursuant to s 61M (2) of the Crimes Act (sequence 14) a total term of seven and a half years with a non-parole period four years and 11 months. The starting point for that sentence was 10 years discounted by 25%.

Sequence 15, sexual intercourse with a child under 10 years s 66A (1) of the Crimes Act taking into account a further offence of indecent assault on a child under 16 pursuant to s 61M (2) of the Crimes Act (sequence 003) a total term of nine years with a non-parole period of five years and 11 months. The starting point for that sentence was 12 years discounted by 25%.

Sequence 16 incite child under 10 to act of indecency, s 61A (2) of the Crimes Act. A total term of two years and three months. The starting point for that sentence was three years discounted by 25%.”

64. The total indicative sentences and non-parole periods given after discount were however, 32 years and 3 months with 18 years and 3 months total non-parole. That reflected a total starting sentence before discount, of 39 years.

65. The aggregate sentence imposed was 20 years imprisonment, with a non-parole period of 13 years, dating from the applicant’s arrest on 24 December 2016. This reflected her Honour’s application of the principle of totality, which she thus explained:

“I propose to impose an aggregate sentence pursuant to s 53A (1) of the Crimes (Sentencing Procedure) Act. The total aggregate sentence should reflect the accused’s total criminality. The effective non-parole period must reflect the minimum period which the law requires the offender to spend in custody having regard to the purposes of sentencing. See R v MA 2004 NSWCCA 92.

Notwithstanding that there is one episode of criminality with respect to the sequences, other than 16, 17 and 20, I am satisfied that some accumulation is appropriate to reflect the multiple offences which are each of significant criminality.”

The alleged errors

66. The applicant contended that the sentencing judge’s alleged error was revealed by the following:

1. the fact that the most serious offence, sequence 15, had an indicative sentence of 9 years, with a non-parole period of 5 years and 11 months, while the aggregate sentence imposed was 20 years with a non-parole period of 13 years, that reflecting total accumulation of 11 years and 7 years, 1 month non-parole;

2. that there was only one victim;

3. that all the offences occurred at one location;

4. that 6 of the 8 offences occurred within a period of about 30–40 minutes;

5. that the totality of the offending over a period of some 3 months, was apparently limited to a number of occasions;

6. cases said on appeal to be comparable; and

7. sentencing statistics.

No error is established

67. In the applicant’s case it was common ground on sentence, not only that his was an appropriate case for an aggregate sentence to be imposed on the applicant, and that his penile vaginal intercourse offence, sequence 15, was the most serious of his offences but also that it was not an isolated incident; and that accordingly, there had to be some accumulation of the indicative sentences given for the offences for which he was being sentenced.

68. The indicative sentence for that offence was a total term of 9 years with a non-parole period of 5 years and 11 months after discount. When that is compared with, on the one hand, the maximum penalty of life imprisonment and a standard non-parole period of 15 for that offence, and on the other, the aggregate sentence imposed for all of the applicant’s offending, of 20 years imprisonment, with a non-parole period of 13 years, it is apparent that her Honour’s approach to the application of the totality principle, involved relatively limited accumulation of all of the indicated sentences.

67. Overall, given the seriousness of all of the applicant’s offending and all the relevant circumstances, the resulting aggregate sentence imposed was relatively lenient. As observed in Kerr at [114]:

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

70. In the present case, neither the indicative sentences given, nor the aggregate sentence imposed, of themselves establish that the applicant’s sentence was unreasonable or plainly unjust.

71. The other matters on which the applicant relied neither mitigated the seriousness of his offending, nor established that the aggregate sentence imposed was manifestly excessive.

72. In particular, that the applicant committed his offences in the home he shared with his family did not mitigate his offence, but was in fact an aggravating matter which had to be taken into account in arriving at his sentence: s 21A(2)(eb).

73. As to the statistics relied on, it was submitted:

“62.   At the time of writing, the Judicial Commission statistics recorded only 15 cases dealt with since Muldrock (2011) 244 CLR 120 and under s66A in its present form. Of them 12 are recorded as having received an aggregate or "effective" head sentence and non-parole period (attached). Only 1 of those 12 received an aggregate head sentence of 20 years imprisonment and only 1 received an aggregate non-parole period of more than 12 years.

63. Prior to its repeal, the aggravated form of the offence (s66A(2)) had the same maximum penalty (life imprisonment) and a 15-year standard non-parole period as the current s66A offence. The Judicial Commission statistics record 78 cases as having received an aggregate or "effective" head sentence (attached). Only 9 of those received an aggregate head sentence of more than 20 years imprisonment (12%) and 19 received an aggregate non-parole period of more than 12 years (21%).”

74. In Bao v R [2016] NSWCCA 16 this Court said at [73]:

“73    … Statistics show a range of sentences actually imposed in the past, not the correctness of that range nor its applicability to a given case: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59]. As was observed in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [48], [54] – [55] with respect to consistency of sentencing, what is sought is consistency in the application of relevant principles not some numerical or mathematical equivalence.”

75. The statistics revealed that in some 13% of offences under s 66A(2), offenders were given aggregate sentences of 20 years or more. That the applicant fell into that category of offenders, given what he was being sentenced for, is incapable of establishing that his aggregate sentence was manifestly excessive.

76. Cases said to be comparable included TO v R [2017] NSWCCA 12; 265 A Crim R 191, where after trial the appellant was found guilty of three offences: one count of aggravated sexual intercourse with a person under the age of ten, the circumstance of aggravation being that the child was under the appellant’s authority, contrary to s 66A(2) of the Crimes Act; one count of attempting to have sexual intercourse with a child under the age of ten contrary to s 66B of the Crimes Act; and one count of assaulting a child under the age of ten with intent to have sexual intercourse contrary to s 66B of the Crimes Act, committed between 19 and 21 June 2012.

77. For those offences TO was resentenced to:

1. On count 1, a single instance of anal penetration of a 9-year-old,  the offender’s step daughter, imprisonment for a non-parole period of 9 years commencing 15 June 2015 and to expire on 14 June 2024 and a balance of term of 3 years to commence 15 June 2024 and to expire 14 June 2027.

2. On count 2, attempted oral intercourse, imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.

3. On count 3, attempted vaginal intercourse, imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.

78. This reflected an overall sentence of imprisonment of 12 years and a non-parole period of 9 years. At [252] it was observed that:

“Any form of sexual intercourse with a child under 10 years is an appalling act but it may, for example, be much worse when accompanied by violence and induced fear or when it is part of a repetitive course of abuse. The crime may be more serious if the victim is of an age well below 10 years rather than just below. If the perpetrator is a close family member, for example the child’s natural father, the offence may be objectively worse because of the greater damage that may be done to the child’s sense of security. There are numerous other variables.”

79. Many of the features identified by this Court in TO as making an offence more serious, were present in the applicant’s case.

80. The applicant had committed more than 3 serious offences as a part of his repetitive course of abuse; his victim was aged well below 10 years, being aged only 4 and 5 at the time of his repeated, appalling offending; and he was that child’s natural father. It follows that the outcome in TO does not assist the applicant. To the contrary, it supports the conclusion that his aggregate sentence was not excessive.

81. ZA v R [2017] NSWCCA 132, on which the applicant also relied, does not support the conclusion that the applicant’s sentence was manifestly excessive.

82. ZA, also the victim’s natural father, was given an aggregate sentence following pleas of guilty, of 26 years commencing with a non-parole period of 18 years for offences committed between January 2012 and July 2013, whilst the victim was aged between 8 and 9 years. This offender was sentenced for 7 offences contrary to s 66A(2), over the course of 18 months of:

1. seven counts of having sexual intercourse with a person under 10 years and who was under his authority, contrary to s 66A(2) Crimes Act, with each offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years;

2. two counts of using a child under 14 years to make child abuse material contrary to s 91G(1)(a) Crimes Act, with each offence carrying a maximum penalty of 14 years’ imprisonment with no standard non-parole period; and

3. one count of possession of child abuse material contrary to s 91H(2) Crimes Act, carrying a maximum penalty of 10 years’ imprisonment with no standard non-parole period.

83. It was accepted that ZA’s sentence, some of which attracted life sentences, was a very heavy one: at [100]. But it was concluded that the sentencing judge had given appropriate regard to the objective gravity of his offences; his subjective circumstances; the need for specific deterrence, general deterrence, denunciation and protection of the community; as well as the need for the sentence to recognise the harm done to the victim, they all being purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999: at [105]. The present case is a very grave example of multiple s 66A(2) offences committed against the applicant’s own young daughter over an extended period, accompanied by other criminal conduct. Comparisons with other sentences referred to in [114] of ZA v R do not assist the applicant.

84. It is always difficult to make comparisons between offending as heinous as that which the applicant committed against his 4–5 year old daughter, with other dreadful offending committed against other, older children.

85. True it is that the applicant committed all of his appalling offences over a period of only some 3 months, before his offending was brought to an end by the discovery of what he had filmed himself doing and that he committed many of his offences during a very short timeframe, a period of only about 30–40 minutes. That, however, could not mitigate the seriousness of his overall offending. To the contrary, it may have exacerbated it, given the very young age of his daughter and the evidence that he persisted, even when she asked him to stop.

86. That offences occur in the course of a single extended episode does not justify the sentences imposed being made wholly concurrent, because the separate harm done to the victim by the offender’s different acts must be taken into account, so that the fact that the offences occurred close in time, does not obscure the fact that a number of different offences were committed: R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [50] and Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332 at [122].

87. Nor does the fact that many of the applicant’s offences were committed close in time establish that ZA’s offending against his considerably older child, pursued over a period of some 18 months, was objectively much more serious than that of the applicant, as was his case.

88. Intervention on an appeal such as this is only justified where the Court is able to conclude that there must have been some misapplication of principle by the sentencing judge, even though where and how cannot be discerned from the reasons: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

89. None of the matters relied on establish that Bright DCJ did not pay necessary attention to any of the matters which her Honour had to take into account, when she undertook the instinctive synthesis which resulted in the aggregate sentence imposed on the applicant: Markarian v The Queen at [51].

90. Those matters included the objective seriousness of what the applicant did to his child, his moral culpability for his offending, the relevant aggravating and mitigating matters and the applicant’s subjective circumstances; the need for both specific and general deterrence to feature in his sentence; the need to increase the sentences for those offences where other offences had to be taken into account on a Form 1; and the principle of totality. Her Honour was also obliged to bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act:

“(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.”

91. The applicant has neither established error in her Honour’s application of the principle of totality, nor that the aggregate sentence imposed as the result of this exercise of the sentencing discretion was manifestly excessive. Accordingly, these grounds must fail.

Orders

92. For the reasons given, I would order:

1. Leave to appeal granted; and

2. Appeal dismissed.

93. ADAMSON J: I agree with the orders proposed by Schmidt J, substantially for the reasons given by her Honour.

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Decision last updated: 01 April 2019