Corby v R - [2010] NSWCCA 146

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Corby v R [2010] NSWCCA 146

FILE NUMBER(S):
2009/9699

HEARING DATE(S):
5 July 2010

JUDGMENT DATE:
14 July 2010

PARTIES:
Jonathon James Corby (Applicant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Kirby J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/9699

LOWER COURT JUDICIAL OFFICER:
Woods ADCJ

LOWER COURT DATE OF DECISION:
25 September 2009

COUNSEL:
Mr GA Brady (Applicant)
Mr PA Leask (Respondent)

SOLICITORS:
Benjamin & Leonardo Criminal Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
sentence
pleas of guilty
indecent assault by 39-year old male on 14-year old girl
offence involved kissing on lips and cuddling
three offences of commit act of indecency towards victim
offender sent images of his erect penis to victim by multimedia text message via mobile telephone
offender had honest but unreasonable belief that victim was over 16 years
victim with limited intellectual capacity
offender with limited cognitive capacity and limited social skills
relevance of standard non-parole period for indecent assault offence
failure by sentencing Judge to engage in assessment of objective seriousness concerning all offences
error established
lesser sentences warranted in law after proper assessment of objective seriousness of offences and subjective circumstances of offender
appeal allowed

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Veen v The Queen (No. 2) (1988) 164 CLR 465
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Hoadley (NSWCCA, 14 September 1990, BC9002004)
R v Duffy [1999] NSWCCA 321
R v McEvoy [2010] NSWCCA 110
Dunn v R [2010] NSWCCA 128
Hristovski v R [2010] NSWCCA 129
R v Sellars [2010] NSWCCA 133
Phan v R [2010] NSWCCA 8
Porter v R [2008] NSWCCA 145
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Nguyen v R [2007] NSWCCA 14
R v XX [2009] NSWCCA 115
Maldonado v R [2009] NSWCCA 189
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
R v Dagwell [2006] NSWCCA 98
Hudson v R [2008] NSWCCA 90
R v PGM [2008] NSWCCA 172; 187 A Crim R 152
Kenny v R [2010] NSWCCA 6
R v Barrass [2005] NSWCCA 131
Director of Public Prosecutions v Eades [2009] NSWSC 1352
DCU v State Parole Authority of New South Wales [2006] NSWSC 526
Lee v State Parole Authority of New South Wales [2006] NSWSC 1225
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Cage [2006] NSWCCA 304

TEXTS CITED:
Report of New South Wales Sentencing Council, "Penalties Relating to Sexual Assault Offences in New South Wales", August 2008

DECISION:
1. grant leave to appeal against sentences imposed at the Dubbo District Court on 25 September 2009 granted.
2. Appeal allowed and sentences quashed.
3. For the offence under s.61N(1) Crimes Act 1900 committed on 26 January 2009, the Applicant is sentenced to a fixed term of imprisonment for three months commencing on 10 March 2009 and concluding on 9 June 2009.
4. For the offence under s.61N(1) Crimes Act 1900 committed on 27 January 2009, the Applicant is sentenced to imprisonment for four months and two weeks commencing on 10 March 2009 and concluding on 23 July 2009.
5. For the offence under s.61N(1) Crimes Act 1900 committed on 30 January 2009, the Applicant is sentenced to a fixed term of imprisonment for six months commencing on 10 March 2009 and expiring on 9 September 2009.
6. For the offence under s.61M(2) Crimes Act 1900, the Applicant is sentenced to imprisonment comprising a non-parole period of 13 months and two weeks commencing on 10 July 2009 and concluding on 23 August 2010 with a balance of term of 13 months and two weeks commencing on 24 August 2010 and concluding on 7 October 2011.
7. An order is made under s.50 Crimes (Sentencing Procedure) Act 1999, directing the release of the Applicant on parole at the end of the non-parole period on 23 August 2010.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/9699
BEAZLEY JA
KIRBY J
JOHNSON J
14 July 2010

JONATHON JAMES CORBY v REGINA

Judgment

BEAZLEY JA: I agree with Johnson J.
KIRBY J: I agree with Johnson J.
JOHNSON J: The Applicant, Jonathon James Corby, seeks leave to appeal against sentences imposed at the Dubbo District Court on 25 September 2009.
The Applicant pleaded guilty to three offences of committing an act of indecency towards a person under the age of 16 years, an offence under s.61N(1) Crimes Act 1900 punishable by imprisonment for two years. He also pleaded guilty to an offence of indecent assault upon a person under the age of 16 years, an offence under s.61M(2) Crimes Act 1900 punishable by a maximum penalty of 10 years’ imprisonment, with a standard non-parole period of eight years.
With respect to each of the s.61N(1) offences, the Applicant was sentenced to fixed and entirely concurrent terms of imprisonment for nine months commencing on 10 March 2009 and expiring on 9 December 2009. For the s.61M(2) offence, the Applicant was sentenced to imprisonment comprising a non-parole period of 18 months commencing on 10 September 2009 and expiring on 9 March 2011 with a balance of term of 18 months commencing on 10 March 2011 and expiring on 9 September 2012.
The total effective sentence imposed was one of imprisonment for three-and-a-half years with a non-parole period of two years.
Facts of Offences
An Agreed Statement of Facts was tendered at the sentencing hearing. It revealed the following facts.
The Applicant, then 39 years’ old, committed the offences against the victim, a 14-year old girl, in the early months of 2009. The Applicant and the victim lived in a town in the central west of New South Wales. The Applicant had known the victim’s family for about three-and-a-half years at the time of the offences and was a friend of the victim’s father.
The victim had limited intellectual capacity and attended a special-needs class for children of low intellectual capabilities at the local high school.
According to the Agreed Statement of Facts, the Applicant had been in love with the victim and the victim had been reciprocating his feelings. The Applicant had been aware that it was inappropriate to have a relationship with the victim, and that the victim’s parents would not have approved of their relationship. The Applicant encouraged the victim to keep their relationship a secret.
On a school day in early 2009 (some time after the commencement of the school year and before 27 February 2009), the Applicant picked up the victim during lunchtime and drove her to his house in his vehicle. In the lounge room of the Applicant’s house, the victim ate a meat pie whilst the Applicant fed his cow in the backyard. Shortly after, the Applicant came back into the lounge room, sat next to the victim and kissed her on the lips and cuddled her (the s.61M(2) offence). Thereafter, the victim returned to school.
On 27 February 2009, the DOCS Help Line received a report in relation to the Applicant and the victim, and police commenced investigations thereafter. During these investigations, the victim’s mobile phone was seized as an exhibit. The Applicant had given the mobile phone to the victim around Christmas 2008.
The screen saver on the mobile phone was a photo of the Applicant taken by the victim. On the mobile phone, approximately 150 text messages were found to have been sent by the Applicant to the victim, with the general theme being the Applicant’s love towards the victim and their arrangements to meet each other.
Also found on the mobile phone were three multi-media text messages of a man’s erect penis. These images were sent on 26, 27 and 30 January 2009 (the three s.61N(1) offences).
The victim was interviewed in relation to these matters on 9 March 2009. The next day, the Applicant was arrested and cautioned at his home and was conveyed to the Narromine Police Station. He participated in a recorded interview with police and admitted that he kissed the victim on her lips and cuddled her.
The Applicant admitted that he had sent the three multi-media text messages to the victim, with the image in each case depicting his own erect penis.
The Crown tendered at the sentencing hearing a report dated 2 September 2009 of Mr Greg Tyrer, psychologist, concerning the victim. Mr Tyrer conducted a WISC-IV cognitive assessment test, with the victim scoring lower than 99 out of 100 individuals her age on each of the verbal, performance and full-scale scores. He concluded that the victim had intellectual functioning that falls into the extremely low range of developmental disability, below more than 99% of the population of her age. He observed that there was no significant difference between her verbal and performance scores, indicating that this assessment was a reasonable measure of her current (as at 2 September 2009) functioning and intellectual potential. Mr Tyrer observed that estimates of the victim’s adaptive behaviour skills suggested that she was making very positive use of the family and community support available to her, in terms of her day-to-day adaptive behaviours.
The Applicant was charged with the present offences on 10 March 2009 and refused bail. He has been in continuous custody for these matters since that date.
The Applicant’s Subjective Circumstances
The Applicant was aged 39 years at the time of the offences and 40 years at the time of sentence.
A presentence report was tendered at the sentencing hearing, together with a report dated 7 September 2009 of Ms Lisa Brown, psychologist. The Applicant gave evidence at the sentencing hearing. In addition, a letter from the Applicant’ sister was before the sentencing Judge.
According to the reports, the Applicant is the youngest in a family of four and has enjoyed a close and supportive relationship with his three siblings. His parents separated when he was seven years’ old. Both of the Applicant’s parents died during 2007 in separate events. Between 1999 and 2007 the Applicant had been caring for his mother, who suffered from dementia and lung cancer.
Although the Applicant was said to enjoy a wide circle of social support and peers within the local area, he had limited involvement in adult personal/romantic relationships. He has never been married and his longest relationship was said to have lasted six-to-eight months when he was 18 years’ old.
The Applicant left school at the age of 14 years and had worked in various unskilled labouring positions. From about late 2006, he was in receipt of a disability support pension. Ms Brown’s report referred to the Applicant sustaining head injuries in motor vehicle accidents which bore upon his intellectual functioning. He has been taking medication of various types for some years, including anti-convulsant medication for epilepsy.
The Applicant has a history of alcohol abuse. He has a criminal record, essentially for drink-driving offences in 1990, 1994 and 1999 and offences of assault occasioning actual bodily harm in 1994 and offences of common assault in 2000 and 2001. Previous sentences had involved good-behaviour bonds, community service and fines.
The Applicant had no prior history of sexual offences.
The presentence report revealed that a senior psychologist with the Department of Corrective Services had conducted a Static-99 risk assessment concerning the Applicant, and had concluded that he constituted a moderate-to-high risk of sexual reoffending. It does not appear that a dynamic risk assessment was conducted by a Department of Corrective Services psychologist with respect to the Applicant.
The psychological assessment of Ms Brown provided some insight into the Applicant. Ms Brown observed that “clearly defined social, emotional, behavioural and psychological supports to mediate the impact of stressors are likely to produce the most positive effect in term of reducing the prospects of reoffending” and that this “would include adequate family support, psychological intervention and counselling” (page 6). Ms Brown stated that it was important that psychological intervention and counselling should focus on the Applicant’s pattern of alcohol consumption to relieve symptoms of distress, his grief and loss issues and symptoms of stress, depression and anxiety. She said that it was critically important that the Applicant remained connected to and supported by his sisters and family. The Applicant informed Ms Brown that he was willing to undertake psychological intervention and counselling.
Thus, the subjective evidence before the District Court suggested that the Applicant was a socially isolated man of limited intelligence who had devoted his time between 1999 and 2007 as the full-time carer for his seriously ill mother. It appears that the Applicant had not coped well following the death of his mother in 2007.
Evidence and Submissions in the District Court
Before turning to the grounds of appeal, it is appropriate to refer to evidence adduced at the sentencing hearing and certain submissions made concerning the objective seriousness of the offences. As will be seen, a central challenge to the sentences in this case is that the sentencing Judge failed to engage in a process of fact finding leading to an assessment of the objective seriousness of the Applicant’s crimes.
As already mentioned, the Applicant gave evidence at the sentencing hearing on 17 September 2009. In evidence in chief, the Applicant said that he believed that the victim was 16 years’ old at the time of his relationship with her because that is what she had told him (T9.30, T20.15). Although asserting a belief that the victim was 16 years’ old at the relevant time, the Applicant readily conceded in evidence in chief that the belief was not a reasonable one in the circumstances (T9-10).
In the course of his evidence in chief, the Applicant was shown a digital photograph on his mobile phone which he said had been sent to him by the victim about the end of February 2009. The photograph carried a caption “Babluv 16” (T10). Another photograph bearing the same caption was shown to the Applicant, and he said that that photograph had been sent to him by the victim about three or four weeks before his arrest on 10 March 2009 (T11). The Applicant said in evidence that he believed that the number “16” in the caption indicated the victim’s age (T12). He was asked by his counsel during evidence in chief (T12-13):
“Q. You’re now aware that you’d involved yourself with a 14 year old?
A. Yes I am now.
Q. How do you feel about involving yourself with this young teenage girl? What do you feel about it now?
A. I feel - I feel bad. Like I shouldn’t have done anything like that.
Q. Are you going to do anything like this ever again?
A. No.
Q. Have you done anything like this ever before?
A. No.
Q. Why should his Honour accept that you won’t do this again at some stage?
A. I wouldn’t never ever do anything like that again. It was just a mistake like I just sort of I wanted a friend really to talk to.
Q. And why do you think you chose to become involved with this girl?
A. Well she kept on ringing me up and calling me and talking to me all the time and wanting to go out with me and that.
Q. All right so you were friends with her at stage [sic], is that right?
A. Yeah.
Q. Nothing more than friends?
A. We were just friends.
Q. All right and then at some stage it moved to more than friendship?
A. Yes.
Q. And you as an adult made a choice step [sic] from more than friendship and into a relationship didn’t you?
A. Yes.
Q. And you accept as an adult that whoever was ringing who, you were responsible for that weren't you?
A. Yeah.
Q. You’re responsible for your own decisions as an adult aren’t you?
A. Yes.
Q. And how do you feel about the decision or choice that you made at that point?
A. How do I feel?
Q. Yeah?
A. I feel like I’ve done wrong and I shouldn’t never ever done it and I feel guilty for doing it.”
The Applicant said that the kiss which constituted the s.61M(2) offence was “just a peck” on the lips and that he was sober at the time (T17). He said that he was drunk on the occasions when he sent photographs of his penis to the victim (T17-18).
Under cross-examination by the Crown, the Applicant acknowledged that he had known the victim’s family for about three-and-a-half years, but said that he had only seen the victim’s family “on and off” in that period (T18). The Applicant said that the victim commenced to ring him just before Christmas 2008. He agreed that he told the victim not to tell her parents about their relationship. He explained that he did not want to fight with her family as they were good friends, and he did not want to hurt the family (T18). He agreed that he was falling in love with the victim and proposed to tell her parents about the relationship “after a while” (T19.4).
The Applicant agreed that he told the probation officer (who prepared the presentence report) that he felt “led on” by the victim. The Crown asked (T19-20):
“Q. Now by leading you on, what do you mean?
A. Well she wanted me to go out with her and everything like that. That's what I meant.
Q. And you're - you were 39 at that stage weren't you?
A. Yeah.
Q. You thought that was inappropriate didn't you?
A. I do now.
Q. What did you think back then?
A. Well I did then too I suppose.
Q. You thought that was a good thing didn't you?
A. No.
…
Q. It made you feel happy that she was asking you out back then, isn't that true?
A. Yeah. I thought it was just like a friend for a while and then I didn't really know she wanted to get serious till she started talking that she wanted to get serious in the relationship and that.
Q. Yes and when she started to tell you that she wanted to be serious, you agreed didn't you?
A. Yeah.
Q. And you agreed because you thought that was a good idea. You didn't think it was anything wrong with that did you?
A. No.
Q. Do you blame [the victim] for this?
A. I blame both of us.
Q. So she's partly responsible, is that right?
A. Well she told me she was 16 and that.”
At the conclusion of the Applicant’s evidence, submissions were made to the sentencing Judge on a range of issues, including an assessment of the objective seriousness of the offences. This assessment was necessary for all offences, but was particularly relevant to the s.61M(2) offence, where a standard non-parole period applied as a guidepost or reference point given the Applicant’s plea of guilty to that offence. Counsel for the Applicant made written and oral submissions in the District Court on this and other issues, and the Crown made oral submissions concerning these matters.
The Applicant’s counsel urged the sentencing Judge to find that the Applicant had an honest but unreasonable belief that the victim was 16 years’ old at the time of the offences, and that this bore upon the objective seriousness of the offences. Other submissions were made by reference to the nature of the particular offences in the circumstances of the case.
At the conclusion of submissions, the sentencing Judge adjourned the matter for sentence on 25 September 2009.
The Remarks on Sentence
His Honour sentenced the Applicant on 25 September 2009. After reciting the facts of the offences and referring to the Applicant’s criminal history, the sentencing Judge turned to the nature of the offences (ROS3-4):
“The offences of this nature are a serious concern to the community and so the community demands an appropriate punishment as a deterrent to others and as a general protection from this kind of offending. We need to re-emphasise the message to the community that persons who yield to their sexual impulses towards children will receive a severe punishment and such must include a term of full-time custody.
This offence is one of those offences which are categorised as very serious sexual assaults against young children. The seriousness of such is noted by the courts on many occasions such as in the case of BJW in the year 2000 where the courts have considered that the maximum penalty the legislature has set for child sexual offences reflects community abhorrence of and concern about adult sexual abuse of children.
General deterrence is of great importance in sentencing such offenders and especially when the young maybe particularly vulnerable as it appears this young girl was.
These comments must have particular relevance in this case before me now where the legislature has gone further and specified a minimum non-parole period of eight years where the maximum penalty is ten years.
It is all very well saying that the offence involved only touching, however that is exactly what the law is stating. Any such what might look like benign touching is still to be treated very seriously. We usually never really know what the long term effect is of such an intrusion onto a young child.
Under s 21A of the Crimes (Sentencing Procedure) Act I am required to consider aggravating and mitigating factors. When considering aggravating factors a court should ensure that there is no double consideration of factors, that in effect are part of the elements of the charges. Generally aggravating factors maybe considered as relevant when considering any circumstances that would lead towards leniency from the penalties as prescribed by the law. The age of the child is already an element of the offence.
We generally consider that in these type of cases there must be emotional harm to the victim. Whilst there is no victim impact statement here there is a psychological assessment from a Dr Tyrer who notes her extreme vulnerability as being a person with intellectual functioning that falls into the extremely low range of developmental disability, below more than ninety-nine per cent of the population of her age.
The psychologist notes her vulnerability to exploitation and the need for community protection.”

After referring to aspects of the Appellant’s subjective case, the sentencing Judge returned to the circumstances of the offences (ROS5-6):
“So how do I ensure he is adequately punished and also protect the community and also give some optimism to rehabilitation which in the end is better for everyone.
For the offence of indecent assault the maximum is ten years. The
legislature has considered that eight years is an appropriate term of imprisonment in the middle of the range cases through the minimum non-parole period specified, although this has been determined when considering a minimum non-parole period where there has been no admissions by way of a plea and I refer to the principles and guidelines considered by the Court of Criminal Appeal in Way's case.
I am satisfied that there are relevant factors here which mean that I have the full sentencing discretion in the matter before me now.
For the offences of commit an act of indecency the penalty is two years imprisonment and these matters could have been dealt with by the Local Court.
Applying the relevant principles I must still determine where in the range of seriousness these offences lie, but how does one give an arithmetical formula to a level of such intrusions onto a young person. Yes there is the breach of trust by a family friend with a young person of limited intellectual capacity.”
His Honour then turned to issues of statistics and protective custody before returning to his conclusion concerning sentence (ROS6-7):
“Whilst I must always consider s 5 of the Crimes (Sentencing) Procedure) Act is there any other punishment that could better assist with the rehabilitation of the offender other than imprisonment? In view of the nature of this type of assault on a young child I must consider that the only penalty to consider for the protection of the community and children and as a message of specific and general deterrence is a custodial penalty.
For the three counts of commit an act of indecency I will consider fixed terms of imprisonment of nine months imprisonment to run concurrently.
On the count of indecent assault I would initially consider a term of non-parole custody of two years and three months and this would be arrived at by considering that the severity would result in a term of four years and then allowing for the plea of guilty would result in a term of three years imprisonment. This would lead to a non-parole term of two years and three months.
However, in view of the totality of the sentences I will find special circumstances to vary the ratio of non-parole to parole. It is noted that he has been in remand custody since 10 March 2009 so any terms must date from that date.”
His Honour then imposed the sentences referred to earlier in this judgment (see [5]-[6] above).
Grounds of Appeal
The Applicant relies upon the following grounds of appeal:
(a)Ground 1 - the learned sentencing Judge failed to, or failed to adequately, assess the objective seriousness of the s.61M(2) offence.
(b)Ground 2 - the learned sentencing Judge failed to, or failed to adequately, identify the seriousness of the s.61N(1) offences.
(c)Ground 3 - the learned sentencing Judge failed to, or failed to adequately, assess the offences in light of the principle of proportionality as stated in Veen v The Queen (No. 2) (1988) 164 CLR 465.
(d)Ground 4 - the sentences for the s.61N(1) offences were manifestly excessive.
Mr Brady, counsel for the Applicant, submitted that the Court should find error in the sentencing process and that the Court should conclude that lesser sentences were warranted in law for the purposes of s.6(3) Criminal Appeal Act 1912.
Grounds 1 and 2 - Failure to Assess the Objective Seriousness of the s.61M(2) Offence and the s.61N(1) Offences
It is convenient to consider these grounds together.
Submissions
Mr Brady submitted that the sentencing Judge had failed to make findings concerning the objective seriousness of the offences. He submitted that a number of issues had been raised by counsel for the Applicant in the District Court which bore upon an assessment of the objective seriousness of the offences, but that these submissions were not referred to in the remarks on sentence, nor were any findings made by reference to these submissions.
Particular emphasis was placed upon the need for a finding concerning the objective seriousness of the s.61M(2) offence given the existence of the standard non-parole period for that offence.
The Crown acknowledged that no express findings were made concerning the objective seriousness of the offences. It was submitted, however, that the sentencing Judge’s assessment of the objective seriousness of the offences could be inferred from the sentences actually imposed for these offences and that the sentences were appropriate for the offences.
Decision
The Applicant stood for sentence for an offence which carried a standard non-parole period, together with several offences which did not. Given the Applicant’s plea of guilty, the standard non-parole period for the s.61M(2) offence applied as a guidepost or reference point only: R v Way [2004] NSWCCA 131; 60 NSWLR 168. However, as many decisions of this Court have made clear, it was appropriate for the sentencing Judge to make a finding concerning the objective seriousness of the s.61M(2) offence, to assist an assessment of the significance in the particular case of the standard non-parole period as a guidepost or reference point.
Further, the common law duty to give reasons for imposition of sentence called for some assessment of the objective seriousness of the s.61M(2) offence and the s.61N(1) offences: R v Hoadley (NSWCCA, 14 September 1990, BC9002004, page 3); R v Duffy [1999] NSWCCA 321 at [11]. A number of submissions had been made in the District Court on these issues.
This Court has made clear that the assessment of objective seriousness for the purpose of sentence for a standard non-parole period offence does not require an elaborate verbal formula: R v McEvoy [2010] NSWCCA 110 at [89]; Dunn v R [2010] NSWCCA 128 at [19]-[21]; Hristovski v R [2010] NSWCCA 129 at [35]-[38]; R v Sellars [2010] NSWCCA 133 at [11]-[14]. In R v McEvoy, Simpson J at [89] referred to an omission to make a finding concerning the position of an offence on the range of objective seriousness as an error of process, and observed that it did not necessarily follow that there was some error in the imposition of the sentence imposed. Even if such an error of process has occurred, a sentence may well lie within the range of the sound exercise of sentencing discretion: Phan v R [2010] NSWCCA 8 at [11], [16]; Dunn v R at [20].
These decisions reflect the need for a practical approach to be taken by this Court in assessing remarks on sentence, with an emphasis upon substance (and the resulting sentence) and not just matters of form.
That said, the law requires that a sentencing Judge engage in consideration of matters bearing upon the objective seriousness of a crime for the purpose of determining sentence. The sentencing Judge reserved for a week on the question of sentence and had the opportunity to consider the helpful written and oral submissions on sentence. However, the extracts from the remarks on sentence set out at [38]-[40] above, reveal only general statements concerning this class of offending, without any assessment of arguments, let alone conclusions, concerning the objective seriousness of the Applicant’s offences. The closest his Honour came to consideration of the Applicant’s submissions on objective seriousness was the statement (at [38] above) that it “is all very well saying that the offence involved only touching, however that is exactly what the law is stating”. Of course, indecent “touching” of the victim was an element of the s.61M(2) offence. The submissions made to the Court concerned the nature and extent of the touching in this case. His Honour did not address this issue.
The arguments advanced for the Applicant at the sentencing hearing, both orally and in writing, contended that the s.61M(2) offence lay towards the bottom of the range of objective seriousness for this type of offence because of the nature of the conduct constituting the offence (a kiss and a cuddle) and the Applicant’s honest but unreasonable belief as to the victim’s age. With respect to the s.61N(1) offences, it was submitted that these offences lay below the mid-range of objective seriousness given that the Applicant was not in the immediate physical presence of the victim at the time of the offences. The remarks on sentence did not refer to these arguments at all.
The Crown is left to argue in this Court that it may be inferred from the sentences imposed that his Honour made findings favourable to the Applicant on these issues. It is not at all clear in this case that this is so. The sentences imposed in this case do not constitute an answer to the first and second grounds of appeal.
In my view, the sentencing Judge did not comply with the requirements of the law to give reasons for sentence in this case. I am satisfied that error has been established in this case in accordance with the first and second grounds, so that it is necessary for this Court to consider whether a lesser sentence is warranted under s.6(3) Criminal Appeal Act 1912. Before moving to that question, however, reference should be made to the other grounds of appeal.
Ground 3 - Failure to Adequately Assess the Offences in Light of the Principle of Proportionality
It is not necessary to recite the submissions made by reference to this ground in any detail. In a sense, resolution of this ground flows from the conclusion reached by reference to the first and second grounds of appeal.
In circumstances where no proper or adequate assessment was made of the objective seriousness of the offences, I am satisfied that the third ground of appeal is also made out in this case.
Ground 4 - Claim of Manifest Excess for s.61N(1) Sentences
The principal argument advanced here was that a sentence of imprisonment for a fixed term of nine months for each of the s.61N(1) offences was manifestly excessive, having regard to the maximum penalty of two years’ imprisonment, the 25% discount allowed for the pleas of guilty, and the objective circumstances of each offence and the subjective circumstances of the Applicant.
As error has been demonstrated in other respects and it will be necessary for the Court to move to an assessment for the purpose of s.6(3) of the Act, a lengthy examination of this ground is not required. The problem here arises from the approach of the sentencing Judge in imposing an identical and totally concurrent sentence for each of the three separate offences. This approach does not comply with contemporary sentencing principles. In Porter v R [2008] NSWCCA 145, with the concurrence of Bell JA and McCallum J, I said at [72]-[75]:
“72The approach adopted by his Honour is similar to that which has been criticised by this Court in a number of cases including R v Knight (2005) 155 A Crim R 252 at 265-267 and R v Merrin (2007) 174 A Crim R 100 at 107-108. In R v Knight, I observed at 266-267 [78]-[79] (with the concurrence of Mason P and Barr J):
‘To select a sentence appropriate to the overall criminality and impose that sentence, in particular, in respect of all of the s.112(1) charges is an approach which cannot survive the application of the principles in Pearce. An examination of the facts of the 27 offences under s.112(1) reveals that the offences varied in significant respects in their objective seriousness. An identical sentence for each of the 27 offences cannot be supported in principle. On this approach, as Simpson J observed in Hammoud at paragraph 10, all sentences would appear excessive for the specific charges to which they related even when the ultimate term to be served was unimpeachable.
Indeed, a submission advanced by Counsel for the present Applicant illustrates this very difficulty. Having regard to the aggregate 50% discount allowed by the learned sentencing judge for the pleas of guilty, remorse and assistance to the authorities, Counsel contended that sentences of nine years imprisonment with a non-parole period of six years would clearly be an excessive starting point for each of the s.112(1) offences. The fact that such an argument is available to be advanced points to the difficulty which has arisen from his Honour’s failure to approach the imposition of sentence in accordance with Pearce and Hammoud.’
73In R v Merrin, Howie J (Giles JA and Fullerton J agreeing) said at 107 [37]:
‘There is no justification for imposing a sentence for one offence that is increased to encompass the criminality of all offending. Such an approach, apparently adopted by the Judge, runs contrary to sentencing practice that has been followed since Pearce and for nearly a decade. As counsel for the respondent pointed out, a single offence of break enter and steal committed by an 18 years old youth with limited record would not ordinarily warrant a sentence of imprisonment for four years. Yet that is the sentence that the Judge imposed for each of the offences of non-aggravated break, enter and steal. Although it has been recognized by the High Court that the principle in Pearce is not the only method of achieving totality when sentencing from multiple offences; see Johnson v The Queen (2004) 78 ALJR 616, no appellate court has authorised the manner in which the sentencing judge approached the task before him since Pearce was decided.’
74The approach to sentence adopted in this case does not comply with the principles in Pearce v The Queen (1998) 194 CLR 610. Further, the imposition of a type of ‘one size fits all’ set of sentences will serve to distort sentencing statistics which are retained by the Judicial Commission of New South Wales and made available to assist sentencing courts.
75It does not always follow that this Court will intervene and resentence when an error such as this occurs: AJO v R [2008] NSWCCA 28 at [33]; Kerr v R [2008] NSWCCA 133 at [34]-[36]. It is necessary for the Court to consider whether some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.”
The imposition of a “one size fits all” set of sentences in this case has attracted the fourth ground of appeal, a ground of the type referred to in Porter v R. It was a matter for the sentencing Judge in this case to apply the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610, and to then make an assessment concerning the issues of concurrence, accumulation and totality of sentences: Nguyen v R [2007] NSWCCA 14 at [12]; R v XX [2009] NSWCCA 115 at [48]-[52]. The issues of totality, concurrence and accumulation were to be considered in determining the total effective period of imprisonment to be served for the s.61M(2) offence and the s.61N(1) offences. However, his Honour does not appear to have complied with relevant principles in determining sentence for the s.61N(1) offences.
It is not necessary to say more than that with respect to this ground, as the point has been reached where attention ought be directed to the application of s.6(3) to this case.
Are Less Severe Sentences Warranted in Law for the Applicant’s Offences?
Submissions
Counsel for the Applicant submitted that lesser sentences were warranted in law for these offences. He submitted that an assessment of the objective seriousness of the offences, taken with the subjective circumstances operating in the Applicant’s favour, ought see reduced sentences and a shorter effective non-parole period than that which had been fixed in the District Court.
It was submitted that this Court should find that the Applicant had an honest but unreasonable belief that the victim was 16 years’ old at the time of the commission of all offences. It was submitted that this bore upon an assessment of the objective seriousness of the offences in this case. Further, Mr Brady repeated the submissions made in the District Court (see [53] above) concerning the objective seriousness of the offences which, he submitted, would lead to a conclusion that the s.61M(2) offence lay very much towards the bottom of the range of objective seriousness for this type of offence, and that the s.61N(1) offences lay towards the bottom of the range of objective seriousness for that class of offence. He submitted that the s.61M(2) offence and the s.61N(1) offences were capable of summary disposal and that this factor ought to have been taken into account in the Applicant’s favour on sentence.
Although acknowledging the vulnerability of the victim because of her low intellectual capability, Mr Brady submitted that there were features of the Applicant which shed light upon the circumstances in which he came to the position of wishing to establish a relationship with the victim, despite the significant age difference between them.
The Crown submitted that no lesser sentence was warranted for the s.61M(2) offence having regard, in particular, to the standard non-parole period of eight years which operated as a reference point on sentence. Although acknowledging that the physical acts of the Applicant which constituted this offence were not as intrusive as is often seen in this class of offence, the Crown submitted that the large age differential and the low intellectual capacity of the victim was such that a sentence of the order passed in the District Court was appropriate in this case. With respect to the s.61N(1) offences, the Crown submitted that a total period of nine months’ imprisonment for these three offences was appropriate, although this position may have been reached by a process of partial accumulation of separate sentences.
Emphasis was placed by the Crown upon the importance of protection of children and the need for general and specific deterrence. The Crown submitted that no lesser sentence was warranted for the purpose of s.6(3) and that this Court should not intervene.
Decision
In Maldonado v R [2009] NSWCCA 189, Latham J (Campbell JA and Harrison J agreeing) said at [19]:
“Mere identification of an error in the sentencing proceedings is not sufficient to enliven s 6(3) of the Criminal Appeal Act 1912. The error must be a material error, that is, not technical or trivial in nature. If it has the capacity to infect the exercise of the sentencing discretion, this Court has an obligation to re-exercise that discretion and substitute another sentence, unless satisfied that no lesser sentence is warranted in law. It is not necessary for the applicant to persuade the Court that the sentences are manifestly excessive before he may succeed on this ground: Baxter v Regina [2007] NSWCCA 237 ; (2007) 173 A Crim R 284.”
As Spigelman CJ explained in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at 287 [19], s.6(3) is directed to ensuring that the Court of Criminal Appeal re-exercises the sentencing discretion, taking into account all relevant statutory requirements and sentencing principles, with a view to formulating the positive opinion for which the subsection provides.
Section 61M(2) Offence
An offence under s.61M(2) carries a maximum penalty of 10 years’ imprisonment and a standard non-parole period of eight years. The oddity of this situation was noted by the New South Wales Sentencing Council in its report “Penalties Relating to Sexual Assault Offences in New South Wales”, Vol 1, August 2008, page 56, at paragraph 3.47:
“Recently, the SNPP for a s 61M(2) offence was increased to 8 years. This amendment has, however, had the effect of precluding the setting of an additional term under s 44 of the Act of one third of the NPP, for the simple reason that the resulting sentence would exceed the maximum sentence by eight months. The 8 year SNPP exceeds the two-thirds worst case scenario of 7 years 6 months, by six months.”

The New South Wales Sentencing Council returned to this topic at paragraphs 3.65 (page 63) and 3.68 (pages 64-65) of that report, before suggesting that consideration be given to a number of changes, including (page 69):
“Giving consideration at the time of any wholesale review of the Crimes (Sentencing Procedure) Act 1999 (NSW) to standardising the SNPPs for sexual (and other) of sentences within a band of 40-60% of the available maximum penalty, subject to the possibility of individual exceptions, by reference to an assessment of the incidence of off ending and special considerations relating thereto.”
This Court has adverted to the “somewhat curious and inconsistent approach of the legislature” in the specification of standard non-parole periods for certain offences, where the standard non-parole period is not too distant from the maximum penalty for the offence: R v Dagwell [2006] NSWCCA 98 at [38]. Although it is difficult to reconcile the two statutory guideposts in the form of the maximum penalty and the standard non-parole period for a s.61M(2) offence, it remains the position that the legislature has made statutory provision for a standard non-parole period and that it is necessary for sentencing courts to give proper attention to the standard non-parole period, particularly when the term of that period approaches the maximum term provided for the offence: Hudson v R [2008] NSWCCA 90 at [28].
It is of considerable significance when assessing the objective seriousness of an indecent assault against a child to consider the actual character of the assault, including the degree of physical contact involved: R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at 159-160 [31].
In the present case, the s.61M(2) offence involved the Applicant kissing and cuddling the victim. The fact that the victim was 14 years of age rendered the Applicant liable to conviction for a s.61M(2) offence. The evidence demonstrates that the victim had a cognitive impairment for the purpose of s.61H(1A) and s.61M(3)(e) Crimes Act 1900. However, it is not an element of a s.61M(2) offence that the offence be committed in circumstances of aggravation (such as where the victim has a cognitive impairment). Accordingly, the vulnerability of the victim because of her limited intellectual functioning of the victim remains an aggravating factor to which the Court may have regard for the purpose of s.21A(2)(l) Crimes (Sentencing Procedure) Act 1999.
I bear in mind the report of Mr Tyrer, psychologist, concerning the victim. It might be thought that a girl with a level of disability as described by Mr Tyrer would display these characteristics, so that a person in the position of the Applicant would realise her limited capacity. However, the evidence before the District Court supported a conclusion that the Applicant himself was of limited capacity in both cognitive and social respects.
Having regard to the evidence adduced in the District Court, I am satisfied on the balance of probabilities that a finding ought be made that the Applicant had an honest, but unreasonable, belief that the victim was over the age of 16 years at the time when he committed the offences. In the District Court, and again in this Court, the Crown did not strongly resist such a finding.
The Applicant gave evidence that the victim had told him that she was over the age of 16 years. The photographs and the caption referred to in the evidence of the Applicant in the District Court (see [31] above) provided some support for the fact that the victim was telling him that was her age. The evidence in the District Court did not suggest that there had been close and regular contact between the Applicant and the victim’s family over the three-and-a-half years that they had known each other so that the Applicant must have known her true age. I bear in mind the fact that the Applicant told the victim to keep their relationship a secret from her parents. This aspect does not assist the Applicant on this point. However, his evidence in the District Court was to the effect that there was a social inhibition, and a concern on his part, that the victim’s parents may not be happy with an association between their daughter and an older man even if she was (as the Applicant asserted that he believed) over the age of 16 years.
Counsel for the Applicant submitted that this finding was relevant to the Applicant’s moral culpability and thus operated to reduce the objective seriousness of his offence. This Court has emphasised that the criminal law in this area operates to protect children from themselves, as well as from those who may exploit their vulnerability: R v Dagwell at [41]. The age difference between the Applicant and the victim aggravated the objective seriousness of the offence, even making some allowance for his belief that the victim was 16 years’ old: R v Dagwell at [35]; Kenny v R [2010] NSWCCA 6 at [3]-[8], [38]-[41].
It is also relevant to an assessment of the objective seriousness of the s.61M(2) offence that, several weeks before, the Applicant had sent sexually explicit images of his erect penis to the victim on three separate occasions. The s.61M(2) offence involved commission of an indecent assault upon the victim, although the actual conduct involved in the offence was not deeply intrusive in a sexual sense.
Also relevant to the objective seriousness of the offence is the fact that the Applicant’s association with the victim came about through his friendship with her family, so that some element of breach of trust was reflected in his offending.
Before this Court, the Crown submitted that the s.61M(2) offence lay within the low range of objective seriousness (T10.35, 5 July 2010).
In my view, the s.61M(2) offence may be characterised as lying towards the bottom of the range of objective seriousness for this class of offence. The age differential and the limited intellectual capacity of the victim operate against the Applicant, but the actual conduct involved and his belief concerning the victim’s age, ought lead to such a finding.
The s.61N(1) Offences
An offence of committing an act of indecency towards a person under s.61N(1) may be committed even though the offender is not in the immediate physical presence of the victim: R v Barrass [2005] NSWCCA 131. The decision in R v Barrass has been applied so that an act of indecency for the purpose of s.61N(1) may be committed “towards” a person by way of an indecent image transmitted on a mobile phone: Director of Public Prosecutions v Eades [2009] NSWSC 1352 at [51]-[57].

The maximum penalty for an offence under s.61N(1) is imprisonment for two years. There is no standard non-parole period for this offence.
It is relevant to an assessment of the objective seriousness of a s.61N(1) offence whether the offender commits the act of indecency in the physical presence of the victim. An act of indecency, such as exposure of the penis, would ordinarily be a more serious offence where the offender is in the physical presence of the young victim. The immediate effect of an offence committed in the physical presence of the victim (including an apprehension on the victim’s part that worse may follow) would ordinarily be more significant.
In this case, the Applicant committed an act of indecency towards the victim by transmitting an image of his erect penis to her. The Applicant was 39 years’ old and the victim was 14 years’ old. He did it on three separate occasions over a period of four days. The Applicant’s honest, but unreasonable, belief that the victim was over 16 years’ of age forms part of the context in which the offences were committed. However, the law operates to protect children from sexual displays of this sort: R v Dagwell at [41].
The fact that the offence was repeated over a number of days escalates the criminality involved, and reflects a desire on the part of the Applicant to move his association with the victim to an overt sexual level. Further, the transmission of images of this type allowed the victim to retain the images. This was not a single incident of exposure which was over in a short period of time. Rather, the images remained and were available to the victim to view again at a later time. Given the importance of the protection of children in this area, this aspect does not assist the Applicant on sentence.

Once again, the limited intellectual capability of the victim bears upon the objective seriousness of the s.61N(1) offences.
In my view, the s.61N(1) offences lie towards the lower end of the range of objective seriousness for this class of offence, although the objective seriousness of the second and third offences escalates as a result of the repetition of the offence.
Impact of Offences Upon Victim
There was no victim impact statement before the sentencing Judge. However, the report of Mr Tyrer provided some insight into the victim’s circumstances. It may be taken that the victim was adversely affected by the offences, including at the least, a degree of confusion concerning sexual relationship issues.
Subjective Factors and Other Considerations
On the subjective side, the Applicant is now 41 years of age. He has no prior history of sex offending. There has been a history of alcohol abuse which has brought him into conflict with the criminal law. The Applicant’s sisters are strongly supportive of him and will provide assistance to him upon his release from custody. The Applicant had been devoted to the care and assistance of his ill mother between 1999 and 2007, and it seems clear that, in several respects, he was languishing following her death. The present offences occurred in that context.
An assessment of the risk of reoffending by reference to the Static-99 test only must be approached with caution. It is a common tool in risk assessment of sex offenders, although it forms only part of the process: DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [80]. A complete process of risk assessment involves a combination of static (historical and non-changeable) factors and dynamic (changeable) risk factors: Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 at [26], [45]. To the extent that risk assessment is relevant to sentence and the protection of the community, it is appropriate to have regard to all the evidence, including the psychological report of Ms Brown concerning the Applicant. In a sense, Ms Brown’s report provides a type of dynamic risk assessment to be considered in conjunction with the Static-99 assessment. Bearing in mind that the Applicant has no prior history of sex offending and taking into account the context in which the present offences occurred, I do not think that there is a significant risk of reoffending, in particular if the counselling and treatment recommended in his case occurs and the social support of his family is provided.
It is necessary to keep in mind as a guidepost or reference point, the standard non-parole period of eight years applicable to the s.61M(2) offence. I have made a finding that this offence lies towards the bottom of the range of objective seriousness for this class of offence. There are significant subjective factors operating in the Applicant’s favour on sentence.
The Applicant pleaded guilty to these offences in the Local Court and was committed for sentence. A discount of 25% for the utilitarian value of his pleas ought be applied once again, as it was in the District Court.
I do not think that the Applicant is assisted by the possibility that the s.61M(2) and s.61N(1) offences could have been dealt with to finality in the Local Court. The Applicant was to be sentenced for the 61M(2) offence which related to the s.61N(1) offences. It was clearly appropriate that the Applicant be sentenced in the District Court for all offences, so that the sentences could reflect his total criminality. The theoretical prospect that the offences could have been dealt with in the Local Court does not assist the Applicant on sentence: R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 45-48 [76]-[90]; R v Cage [2006] NSWCCA 304 at [31].
It is necessary to keep in mind the need for general deterrence for this class of offence, together with personal deterrence, in particular given that the Applicant still sees some responsibility for the offences lying with the victim. There is a qualified form of contrition and remorse which may be taken into account. It is necessary that the sentences reflect an element of retribution but that they also take into account the Applicant’s reasonable prospects of rehabilitation.
Applying the principles referred to at [67]-[68] above, I am satisfied that the errors in the District Court were material errors which affected the exercise of sentencing discretion. Having taken into account all relevant statutory requirements and sentencing principles, I am satisfied that lesser sentences ought be passed for the purpose of s.6(3) Criminal Appeal Act 1912.
I am satisfied that special circumstances exist having regard to the Applicant’s health and the consequence of a measure of accumulation which is appropriate in this case. It is in the public interest that the Applicant be subject to an extended period on parole to aid his rehabilitation.
With respect to the s.61M(2) offence, having regard to all relevant objective and subjective factors, I consider that, prior to application of the of the 25% discount for the plea of guilty, a non-parole period of 18 months is appropriate with a balance of term of 18 months.
With respect to the s.61N(1) offences, prior to application of the 25% discount for the pleas of guilty, I consider that fixed terms of imprisonment of four months, six months and eight months respectively ought be imposed for the offences on 26, 27 and 30 January 2009. Given the sentence to be passed for the s.61M(2) offence, which will include a non-parole period, I consider that fixed terms of imprisonment under s.45(1) Crimes (Sentencing Procedure) Act 1999 are appropriate for the s.61N(1) offences.
After applying the 25% discount to the s.61M(2) offence, I propose a sentence comprising a non-parole period of 13½ months with a balance of term of imprisonment for 13½ months.
Applying the 25% discount to the s.61N(1) sentences, the resulting sentences are fixed terms of three months, four-and-a-half months and six months respectively.
It is necessary to have regard to the issues of totality, concurrence and accumulation. As the three s.61N(1) offences constitute related offences committed over a period of days involving repetition of the conduct, I consider that the sentences ought be served concurrently, having regard to the relevant discretionary principles: R v XX at [52]. I consider that partial accumulation is required with respect to the sentence to be imposed on the 61M(2) offence, given that it was removed in time from the earlier offences, and involved commission of an act of indecency directly to the person of the victim. I consider that accumulation for a period of four months is appropriate in this case.
The sentencing orders which I propose will see the Applicant released from custody to parole in the near future. It is important that arrangements be made by custodial authorities and the Probation and Parole Service for the accommodation of the Applicant with his family, and for counselling of the type recommended by Ms Brown (see [27] above) to address the Applicant’s alcohol use and other issues which will aid the process of rehabilitation.
I propose the following orders:
(a)grant leave to appeal against sentences imposed at the Dubbo District Court on 25 September 2009;
(b)appeal allowed and sentences quashed;
(c)for the offence under s.61N(1) Crimes Act 1900 committed on 26 January 2009, the Applicant is sentenced to a fixed term of imprisonment for three months commencing on 10 March 2009 and concluding on 9 June 2009;
(d)for the offence under s.61N(1) Crimes Act 1900 committed on 27 January 2009, the Applicant is sentenced to imprisonment for four months and two weeks commencing on 10 March 2009 and concluding on 23 July 2009;
(e)for the offence under s.61N(1) Crimes Act 1900 committed on 30 January 2009, the Applicant is sentenced to a fixed term of imprisonment for six months commencing on 10 March 2009 and expiring on 9 September 2009;
(f)for the offence under s.61M(2) Crimes Act 1900, the Applicant is sentenced to imprisonment comprising a non-parole period of 13 months and two weeks commencing on 10 July 2009 and concluding on 23 August 2010 with a balance of term of 13 months and two weeks commencing on 24 August 2010 and concluding on 7 October 2011;
(g)an order is made under s.50 Crimes (Sentencing Procedure) Act 1999, directing the release of the Applicant on parole at the end of the non-parole period on 23 August 2010.

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LAST UPDATED:
14 July 2010