Corliss v R

[2020] NSWCCA 65

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Corliss v R [2020] NSWCCA 65
Hearing dates:	14 August 2019
Date of orders:	08 April 2020
Decision date:	08 April 2020
Before:	Brereton JA at [1] Johnson J at [23] Lonergan J at [105]
Decision:	(1) Leave to appeal is granted (2) Appeal dismissed
Catchwords:	SENTENCING — appeals — appeal against sentence — misapplication of principle — whether sentencing judge failed to assess objective seriousness — whether sentencing judge erred in determining starting point for sequences 6 and 7 — whether sentencing judge erred in failing to give full effect to historical sentencing practices — historical child sexual assault offences — indecent assault — carnal knowledge — construction and application of s 25AA Crimes (Sentencing Procedure) Act 1999 — consideration of interaction between s 25AA and s 6(3) Criminal Appeal Act 1912 — grounds of appeal not made out — appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 AJB v R (2007) 169 A Crim R 32; [2007] NSWCCA 51 AK v R [2016] NSWCCA 238 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 Bradbury v R [2008] NSWCCA 93 Connell v R [2019] NSWCCA 70 Crump v R [2016] NSWCCA 2 Denham v R [2016] NSWCCA 309 DF v R (2012) 222 A Crim R 178; [2012] NSWCCA 171 Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51 Featherstone v R [2008] NSWCCA 71 Franklin v R [2019] NSWCCA 325 GRD v R [2009] NSWCCA 149 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hurst v R [2017] NSWCCA 114 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 MC v R (2017) 271 A Crim R 83; [2017] NSWCCA 316 MJL v R [2007] NSWCCA 261 Morton v R [2018] NSWCCA 84 MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213 Mulato v R [2016] NSWCCA 282 Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 PB v R [2016] NSWCCA 258 R v Cattell [2019] NSWCCA 297 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534 R v Previtera (1997) 94 A Crim R 76 R v Van Ryn [2016] NSWCCA 1 Radenkovic v The Queen (1990) 170 CLR 623; [1990] HCA 54 RL v R [2018] NSWCCA 274 Roach v R [2019] NSWCCA 160 Sharma v R [2017] NSWCCA 85 Simpson v R [2014] NSWCCA 23 Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 Vaughan v R [2020] NSWCCA 3 Woodward v R [2017] NSWCCA 44 Work Health Authority v Outback Ballooning Pty Ltd (2019) 93 ALJR 212; [2019] HCA 2 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Texts Cited:	Pearce, “Statutory Interpretation in Australia”, LexisNexis Butterworths, 9th edn, 2019. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report, Parts VII–X, 2017.
Category:	Principal judgment
Parties:	Patrick Joseph Corliss (Applicant) Regina (Respondent)
Representation:	Counsel: S Hall (Applicant) H Roberts (Respondent)   Solicitors: Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/324737
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: --- Date of Decision: 12 April 2018 Before: Herbert DCJ File Number(s): 2016/324737

Judgment

1. BRERETON JA: I have had the benefit of reading, in draft, the judgments to be delivered by Johnson J and by Lonergan J, in the latter of which the factual basis on which the applicant was sentenced are fully set out. For the reasons given by their Honours, I agree that grounds of appeal 1 and 2 must fail. I also agree with their Honours that the applicant’s motion, lodged in person after the hearing of the appeal, should not be entertained, particularly when he has solicitors on the record, who eschew prosecution of the motion. I have the misfortune, however, to disagree with their Honours’ conclusions in respect of Ground 3. And I also disagree with the view expressed by their Honours as to the application of (NSW) Crimes (Sentencing Procedure) Act 1999, s 25AA (“the Sentencing Procedure Act”).

Ground 3

2. The applicant was sentenced before the commencement of s 25AA of the Sentencing Procedure Act. In that context, the sentencing judge rightly proceeding on the basis that for historical offences of the kind in question here, an offender was to be sentenced in accordance with the law and sentencing practices applicable at the time when the offences were committed. [1] Such an approach was in accordance with authority: in R v MJR, [2] a five-judge bench of this Court held that it was appropriate for a court to take into account: “… the sentencing practice as at the date of commission of an offence when sentencing practice has moved adversely to an offender.” That extends to the fixing of a non-parole period. [3]

   1. Remarks of Sentence, p15.

   2. (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [31] (Spigelman CJ, with whom Grove and Sully JJ and Newman AJ agreed; Mason P dissenting). See also R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534 at [67]-[71] (Howie AJ); GRD v R [2009] NSWCCA 149 at [20] (Buddin J).

   3. MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213 at [85]; GRD v R [2009] NSWCCA 149 at [20], citing R v MJR (2002) 54 NSWLR 368; AJB v R (2007) 169 A Crim R 32; MJL v R [2007] NSWCCA 261; Featherstone v R [2008] NSWCCA 71; Bradbury v R [2008] NSWCCA 93.

3. In proceeding on that basis, her Honour also rightly observed that it had become accepted that the sentencing outcomes during the period when the subject offences were committed typically involved non-parole periods of between 35% and 50% of the head sentence. [4] That too was in accordance with authority: in MPB v R,[5] Garling J observed:

This court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1–4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]–[156].

4. Remarks of Sentence, p15.

5. (2013) 234 A Crim R 576; [2013] NSWCCA 213 at [93]. See also GRD v R [2009] NSWCCA 149 at [20].

4. I entirely accept that this did not mean that her Honour was required by law to set a non-parole period in the order of one-third to one-half of the head sentence. Her Honour was required, in compliance with s 44 of the Sentencing Procedure Act to fix a non-parole period that represented the minimum period of imprisonment required to be served by the offender having regard to all of the purposes of justice, and (in the context of historical offences such as those in question here) taking into account historical sentencing practices for such offences. As was said in Denham v R:[6]

The application of principle, it seems to us, means that while it is necessary to take into account the fact that non-parole periods of between 35-50% of the head sentence were fixed in relation to sentences imposed between 1968 and 1986, no mere mechanical or mathematical transposition of that percentage approach to the task required by the Crimes (Sentencing Procedure) Act is warranted. It remains critical that the non-parole period fixed by this Court represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice.

6. [2016] NSWCCA 309 at [109]; see also Woodward v R [2017] NSWCCA 44 at [91]-[94] (R A Hulme J; Beazley P and Bellew J agreeing).

5. However, having recorded an intention to sentence “in accordance with the law and sentencing practices applicable at the time when the offences were committed”, and having noted that at that time non-parole periods were typically between 35% and 50% of the head sentence, [7] her Honour found that the historical sentencing practices constituted “special circumstances” on account of which the non-parole period should be reduced below the statutory proportion, and proceeded to state indicative sentences for each offence, including indicative non-parole periods: [8]

I will give indicative non-parole periods in the matter to ensure transparency of sentencing so as to identify the starting point for each offence and the non-parole period ratio that accorded with the historical practices.

7. Remarks of Sentence, p15.

8. Remarks on Sentence, p16.

6. In respect of each offence, the indicative non-parole period stated by her Honour was, or very closely approximated, 50% of the indicative total sentence. Without further explanation, however, her Honour then imposed a sentence of 7 years imprisonment, with a non-parole period of 4 years and 4 months, which represented 62% of the aggregate sentence.

7. As Johnson J observes, the approach of nominating an indicative non-parole period for each indicative sentence was not required for these offences. However, as her Honour explained, that course was taken, very properly, “to ensure transparency” in sentencing – in other words, fully to expose her Honour’s reasoning. When one has regard to her Honour’s statement to the effect that the offender was to be sentenced in accordance with the law and sentencing practices applicable at the time when the offences were committed, [9] coupled with the indicative sentences which included in respect of each count a non-parole period of 50% of the head sentence, and the absence of any explanation for a non-parole period of a higher proportion, her Honour’s reasoning points inexorably to an aggregate non-parole period of 50% of the aggregate sentence. If her Honour had concluded that such an outcome was less than the minimum period which the offender must spend in full-time custody, one would have expected to see that in the remarks; but there is nothing in them to that effect.

   9. Remarks on Sentence, p15.

8. For the most serious offence – sequence 7 – the indicative sentence was 5 years and 3 months, with a non-parole of 2 years and 7 months. The ultimate aggregate sentence was 7 years, representing an accumulation element of 1 year and 9 months. Yet the non-parole period of 4 years and 4 months also included an accumulation element of 1 year and 9 months. In other words, the whole of the accumulation element was included in the non-parole period. That is an anomalous and discordant outcome, and if there was any reasoning supporting it, it is not disclosed, and it is not self-evident. In my view, such a result is to be explained as a slip, in that having determined to apply an accumulation element of 1 year and 9 months to the head sentence, the same accumulation element was also inadvertently applied to the non-parole period.

9. For those reasons, in my opinion ground three succeeds. No other flaw in the sentencing judge’s approach being apparent, the head sentence of 7 years should stand, but the non-parole period should be 50% thereof, being 3 years and six months.

Section 25AA   

10. My view in that respect is a minority one, and because the majority view is that no ground of appeal succeeds, the question of the impact of s 25AA of the Sentencing Procedure Act where this Court, after a successful appeal, re-sentences an offender who was sentenced before s 25AA commenced, does not require determination, and I would prefer to reserve it for a case in which it does. However, as the other members of the bench have proceeded to express a considered view, with which I respectfully disagree as a matter of law, and which I consider may if applied in other cases be productive of great and serious injustice, I feel constrained to offer my reasons for being of a different opinion.

11. The function of this Court on an appeal against sentence is governed by (NSW) Criminal Appeal Act 1912, s 6(3):

(3)  On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

12. The phrase “pass such other sentence” refers back to “some other sentence … is warranted in law and should have been passed”, and thus to the sentence that should have been passed by the sentencing judge, when the sentence was passed. It does not refer to a sentence which should now be passed if the offender first came before the court for sentence at the time of the appeal.

13. That view of s 6(3) accords with what was said by Mason CJ and McHugh J in Radenkovic v The Queen:[10]

In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be resentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement.

10. [1990] HCA 54; 170 CLR 623 at 632.

14. As that passage makes clear, the injustice involved in an offender, who on appeal succeeds in demonstrating that the sentencing judge ought to have imposed a lesser sentence, becoming exposed to a more severe sentence because of a change in sentencing practices after the sentence, is plain.

15. It is to be noted that this Court’s judgment in MJR, [11] and the High Court’s judgment in Radenkovic v The Queen,[12] stand for two distinct principles. As explained above,[13] MJR holds that when sentencing an offender for an historical offence, the sentencing court should have regard to the sentencing practice as at the date of commission of an offence (at least when sentencing practice has moved adversely to an offender). Thus, generally speaking and absent statutory provision to the contrary, an offender should be sentenced in accordance with the sentencing practises that prevailed at the time of the offence. I will call this the “historical sentencing principle”. It refers the sentencing judge to the law and practice at the date of the offence. Radenkovic, on the other hand, states that when a court of criminal appeal resentences an offender because it has quashed the sentence initially imposed, the offender should ordinarily be resentenced according to the law as it stood at the time of the original sentence, particularly when that law was more favourable than the law at the hearing of the appeal. That is because an offender is entitled to a sentence in accordance with law at the date on which it is passed, and ought not be deprived of it just because the sentencing judge made an error. I will call this the “resentencing principle”. It refers a court of criminal appeal to the law at the date of the original sentence. Although, in MJR, Spigelman CJ found some assistance in what had been said – in a different context – in Radenkovic, [14] the two principles are distinct. They deal with different questions, and direct the court to the law at different times.

    11. (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [31] (Spigelman CJ, with whom Grove and Sully JJ and Newman AJ agreed; Mason P dissenting). See also R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534 at [67]-[71] (Howie AJ); GRD v R [2009] NSWCCA 149 at [20] (Buddin J).

    12. [1990] HCA 54; 170 CLR 623 at 632.

    13. At [2].

    14. R v MJR at [24]-[25].

16. Nothing in Kentwell v The Queen [15] or Betts v The Queen [16] detracts from the “resentencing principle”. Kentwell states that upon resentencing, the Court of Criminal Appeal may take into account all relevant matters, including evidence of events that have occurred since the sentence hearing. [17] That is a reference to matters of fact. Kentwell does not state that, contrary to Radenkovic, a court of criminal appeal should on resentencing apply the law as at the date of the appeal, where it has changed adversely to the offender since the sentence hearing. To do so would be inconsistent with the command of s 6(3) to pass such sentence as should have been passed. On the other hand, evidence of rehabilitation since the sentence informs the sentence that “should have been passed” by showing, albeit by more recent evidence, what the offender’s prospects of rehabilitation truly were; such evidence may show that a more optimistic view should be taken of prospects of rehabilitation.

    15. (2014) 252 CLR 601; [2014] HCA 37.

    16. (2016) 258 CLR 420; [2016] HCA 25 at [11].

    17. (2014) 252 CLR 601; [2014] HCA 37 at [43].

17. Section 25AA (Sentencing for child sexual offences) relevantly provides:

(1)    A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

…

(3)    When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

18. I accept, unreservedly, that s 25AA was intended to abolish, in respect of the offences to which it applies, the “historical sentencing principle”, for offenders coming before the court for sentence after its commencement. This is clear from s 25AA(1), and resort to the extrinsic material and the authorities, referred to by Johnson J, only reinforces it. Where I differ is that I do not accept that s 25AA evinces any, let alone a very clear, indication of statutory intention (of the kind contemplated in Radenkovic), to affect in any way the “resentencing principle”, for an offender who was first sentenced before s 25AA commenced.

19. The extrinsic material referred to by Johnson J [18] plainly evinces an intention to displace the practice of sentencing offenders (in respect of offences to which s 25AA applies) in accordance with the historical sentencing practices that applied at the time of the offence. But in my view they say nothing about the entitlement of an offender to a sentence in accordance with the law that obtained at the date of the sentence. There is absolutely nothing in them that indicates that the slightest consideration was given to the position of an offender who had already been sentenced, and appealed successfully against it. Nor even does the dissenting judgment of Mason P in R v MJR, referred to by Johnson J, which may be a persuasive statement of why, at first instance, offenders should no longer be sentenced in accordance with historical sentencing practices, but says nothing about the position of one who has already been sentenced before a change in the law. It is one thing to deprive child sex offenders who have escaped detection and prosecution for years, of the benefit of the sentencing practices that applied at the time of their offending. It is quite another to deprive those who have been convicted and sentenced, purportedly in accordance with the law as it stood at the time of sentencing, to the entitlement to a sentence in accordance with law at the date of sentencing, and to expose them to a more severe sentence because the judge makes an error in the original sentence.

    18. The second reading speech of the Attorney General, Mr Speakman, on the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (Hansard, Legislative Assembly, 6 June 2018); and the Report of the Royal Commission into Institutional Responses to Child Sexual Abuse.

18. Aside from the extrinsic material, the remaining basis on which it is said that an intention that s 25AA apply to the Court of Criminal Appeal when resentencing is to be discerned, is that the definition of “court” in s 3(1) of the Sentencing Procedure Act includes the Court of Criminal Appeal, so that a “court” referred to in s 25AA includes the Court of Criminal Appeal. However, that definition of “court” long predated the introduction of s 25AA, and provides a faint basis for thinking that the Court of Criminal Appeal was in mind when s 25AA was introduced. In any event, s 25AA plainly will and does apply to the Court of Criminal Appeal when resentencing an offender who was first sentenced after the commencement of the provision. No clear, let alone “very clear”, intention that it should apply to an appeal by an offender who is sentenced before s 25AA commenced can be discerned. Nor can any intention to deprive an offender of the right to be sentenced in accordance with law and practice at the date of the sentence can be discerned from this. Nor do the general terms of s 25AA displace the specific direction to this Court in s 6(3) of the Criminal Appeal Act, to the effect that it is to pass the sentence which it considers the sentencing judge ought to have passed.

19. While s 25AA clearly manifests an intention that in sentencing, for the first time, an offender for historical sex offences, the sentencing practices of today and not those that obtained at the time of the offence should be applied, in my view it does not manifest any intention that an offender who has already been sentenced before the commencement of s 25AA but, because of a successful appeal, comes to be resentenced after its commencement, should on that account be exposed to greater jeopardy, and deprived of the right to a sentence in accordance with the law at the date of the original sentence.

Conclusion

22. In my judgment, leave to appeal should be granted, the appeal should be allowed, the sentence should be quashed, and in lieu thereof the applicant should be sentenced to 7 years imprisonment with a non-parole period of 3 years and 6 months, being eligible for release on parole on 11 October 2021.

23. JOHNSON J: I have had the advantage of considering in draft the judgment of Lonergan J.

24. I agree with the orders proposed by her Honour, but will set out my own reasons for that conclusion. Lonergan J has set out the facts of the offences together with several findings and conclusions of the sentencing Judge and submissions made in this Court concerning the grounds of appeal. It is not necessary to repeat those matters in this judgment.

25. As will be seen, apart from a conclusion that no error has been demonstrated to enliven this Court’s resentencing function under s 6(3) Criminal Appeal Act 1912 (NSW), I have also addressed the question of the proper construction and application by this Court of s 25AA Crimes (Sentencing Procedure) Act1999 (NSW) where an offender was sentenced before the commencement of s 25AA.

26. The interrelationship between s 6(3) and s 25AA was fully argued, apparently for the first time, at the hearing of this application. The fact that this issue was the subject of a reserved judgment has been noted in other appeals to this Court (see, for example, Franklin v R [2019] NSWCCA 325 at [144]). This issue is of some importance. Although not strictly necessary to do so as s 6(3) is not reached in this application, it is appropriate for the Court to express a conclusion on this issue.

First and Second Grounds of Appeal

27. There is some overlap in the issues raised by the first and second grounds of appeal. Both grounds relate to an assessment of the objective gravity of the offences, with Ground 2 focusing upon the starting point for the offences in Sequences 6 and 7.

28. The present offences, of course, were committed long before the introduction of the system of standard non-parole periods in 2003. The requirement of a sentencing court to make a finding concerning objective gravity of offences of this type arose from general law sentencing principles.

29. In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, this Court said at [46]:

“The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999.”

30. The concept of objective gravity or objective seriousness under the general law involves a range of factors including the nature and conduct of the offence in question, the age of the victim, the relationship between the offender and the victim and other objective features of the offence, together with other circumstances which account for criminal conduct: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]. The overlapping concept of “moral culpability” arises for consideration in a similar way: Tepania v R at [113].

31. As the extracts from the sentencing remarks referred to by Lonergan J (at [114], [120] and [124]) make clear, the sentencing Judge gave careful consideration to the objective gravity of these offences and the associated question of moral culpability of the Applicant.

32. With respect to Ground 1, I do not accept the Applicant’s submission that her Honour erred in failing to adequately assess the objective seriousness of the offending. The findings with respect to objective gravity made by the sentencing Judge were clear and understandable. The descriptions of the offences were accompanied by a short finding or conclusion with respect to the gravity of the particular offence. Sentencing law does not require any more than this and this is especially so where the offences for which sentence is to be imposed do not carry a standard non-parole period: Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [143]. This is not a case where the sentencing Judge made bare findings of fact with no assessment at all being made concerning objective seriousness: R v Van Ryn [2016] NSWCCA 1 at [133]-[136].

33. The assessment of objective seriousness of an offence is quintessentially a matter for the sentencing Judge: Mulato v R [2016] NSWCCA 282 at [46]. The question is whether or not the particular characterisation which the sentencing Judge gave to the circumstances of the offence was open to the sentencing Judge: Mulato v R at [37]. In order for this Court to interfere with the assessment made by the sentencing Judge, error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: Mulato v R at [46]. The assessments made by the sentencing Judge were both open and appropriate in the circumstances of this case.

34. It must be kept in mind, as well, that the offences for which the Applicant was sentenced were representative counts. In approaching the question of sentence, it was appropriate for the sentencing Judge to take into account that the charged offences were not isolated ones nor were they aberrations on the part of the Applicant: AK v R [2016] NSWCCA 238 at [66]-[76]. Although this is not a factor which elevated the objective gravity of the offences, it bears upon sentences to be passed for a series of sex offences committed against a child victim.

35. The approach adopted by the sentencing Judge accorded with that required by law and no error is demonstrated with respect to the first ground of appeal.

36. The second ground of appeal focuses attention upon the starting points for indicative sentences for offences contained in Sequences 6 and 7. Each involved an offence of carnal knowledge with a girl aged between 10 and 16 years, an offence under s 71 Crimes Act 1900 (NSW) punishable by a maximum penalty of 10 years’ imprisonment.

37. It is for the Applicant to demonstrate error in accordance with the second ground of appeal. Her Honour proceeded by way of aggregate sentence. It is the aggregate sentence which is the operative sentence in relation to which error is to be demonstrated. If error can be demonstrated with respect to an indicative sentence or sentences, that may assist the demonstration of error in the aggregate sentence, but the Court must keep in mind that it is the aggregate sentence which must be impugned and not the indicative sentences: Vaughan v R [2020] NSWCCA 3 at [89]-[92].

38. Once again, it is for the Applicant to demonstrate that it was not open to the sentencing Judge to utilise the indicative sentences identified for each of Sequences 6 and 7: Mulato v R at [46]. Of course, this Court is not simply re-exercising the sentencing discretion for this purpose. Error in accordance with the principles in House v The King must be demonstrated to allow a finding that the indicative sentences selected by the sentencing Judge were not open in the circumstances of the case.

39. With respect to the offence in Sequence 6, before taking into account the 25% discount for the Applicant’s plea of guilty, the starting point was six years’ imprisonment. Applying the same approach, the starting point for the offence in Sequence 7 was seven years’ imprisonment.

40. As the sentencing Judge found, the offence in Sequence 6 involved an act of sexual intercourse which took place in the Applicant’s vehicle at a time when the victim was 12 or 13 years of age and the Applicant was about 32 years old. There was a significant age difference between the Applicant and the victim. This constituted an act of sexual abuse following a process of grooming on the part of the Applicant. The Applicant’s grooming of the victim included buying her presents which he told her to hide from her parents, showing her pornographic magazines, talking about sex including condoms, lubrication, sexual intercourse and masturbation. He exposed his erect penis to the victim and masturbated in front of her, telling her not to say anything to others about what he was doing.

41. The Sequence 6 offence culminated in penile/vaginal intercourse. The fact that the Applicant was wearing a condom had more to do with self-preservation than any concern for the welfare of the victim whom he was sexually exploiting. I see no error in the sentencing Judge’s setting of an indicative sentence for this offence, including the starting point used for this purpose.

42. With respect to the offence in Sequence 7, it is necessary to keep in mind that the Sequence 2 indecent assault offence was taken into account on sentence. In taking this Form 1 matter into account, it was appropriate for the sentencing Judge to have regard to the Form 1 offence with a view to increasing the penalty that would otherwise be appropriate for the primary offence in Sequence 7. It was appropriate for the sentencing Judge to give greater weight to the need for personal deterrence and the community’s entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]-[23]. This approach will generally lead to the imposition of a longer sentence than would otherwise be required if the Form 1 offence was not taken into account: Abbas v R at [23]; RL v R [2018] NSWCCA 274 at [53]-[57].

43. The Sequence 2 offence was one of assault female and commit act of indecency under s 76 Crimes Act which, if prosecuted separately, is punishable by imprisonment for 6 years. The Sequence 2 offence was committed when the victim was 12 or 13 years of age and the Applicant was about 32 years old. He locked the victim in her bedroom before covering her mouth and nose. When she called out to her siblings, the Applicant told the victim to be still and quiet. He then lay on top of her when they were both fully clothed. The Applicant placed himself between the victim’s legs and she attempted to keep her legs together resisting his assault. The Applicant then simulated a sex act against the body of the victim and pushed down on her in a rough manner. The gravity of the Sequence 2 offence, to be taken into account on the Form 1, was such that it was well open to the sentencing Judge to impose a longer sentence for the Sequence 7 primary offence given the gravity of the Sequence 2 offence.

44. The Sequence 7 offence occurred when the victim was 13 years of age and the Applicant was about 32 years old. The Applicant locked the door of the bedroom of the victim’s brother whilst she was in that room. At the request of the Applicant, the victim removed her underwear, lay on the bed with her legs spread similar to a manner she had seen in pornographic magazines which the Applicant had shown her during the grooming process. The Applicant, who was naked from the waist down, then placed a condom on his penis and applied a lubricant before placing his penis into the victim’s vagina. The victim said that this was uncomfortable and hurt as the Applicant persisted. This was the first time that the victim had engaged in sexual intercourse.

45. The narrative of the offence in Sequence 7 well supports the findings made by the sentencing Judge with respect to it. After the Form 1 offence was taken into account, it was well open to the sentencing Judge to nominate the indicative sentence selected for the offence in Sequence 7.

46. The second ground of appeal should be rejected.

The Third Ground of Appeal

47. The Applicant contends that the sentencing Judge erred in failing to give full effect to historical sentencing practices for child sex offences.

48. In the course of the sentencing remarks, her Honour said (ROS15):

“For an historical offence of this kind I am required to sentence the offender in accordance with the law and sentencing practices applicable at the time when the offences were committed. Consistent with decision such as R v MJR 2002 NSWCCA 129 and MPB v R 2013 NSWCCA 213, the sentencing outcomes for offences committed during this period would often produce non-parole periods of between 35% and 50% of the head sentence. The sentences themselves were much lower than those currently imposed.”

49. Her Honour returned to the issue of historical sentencing practices immediately before passing sentence (ROS16):

“I find special circumstances in this matter due to the historical sentencing requirements.

In this matter I intend to impose an aggregate sentence. … I will give indicative non-parole periods in this matter to ensure transparency of sentencing so as to identify the starting point for each offence and the non-parole period ratio that accorded with the historical practices.”

50. Her Honour fixed a non-parole period which constituted 62% of the aggregate sentence.

51. Her Honour adopted the approach of nominating a non-parole period for each indicative sentence even though that course was not required for these offences: s 54B(4) Crimes (Sentencing Procedure) Act.

52. The Applicant was sentenced on 12 April 2018 prior to the commencement of s 25AA Crimes (Sentencing Procedure) Act which came into effect on 31 August 2018. The sentencing Judge had regard to general law principles applicable at the time with respect to sentencing for historical child sex offences. The complaint here is that her Honour fell into error in imposing a non-parole period for the aggregate sentence which exceeded the 50% selected for the indicative sentences.

53. It is necessary to say something about the principles which applied to sentencing for historical child sex offences before the commencement of s 25AA. These were general law principles which were to be taken into account principally as a result of the decision of the majority of the Court of Criminal Appeal in R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 (Spigelman CJ, Grove and Sully JJ, Newman AJ, Mason P dissenting). In that case, the majority held that where sentencing practice had moved adversely to an offender, it was necessary to have regard to the sentencing practice as at the date of the commission of the offence. I will return to the decision in R v MJR later in this judgment.

54. There can be no doubt that the sentencing Judge in this case had regard to general law principles applicable at the time of the offences with respect to sentencing for historical child sex offences. What her Honour was required to do as well was to have regard to s 44 Crimes (Sentencing Procedure) Act concerning the relationship between the non-parole period and head sentence for the offence. This statutory provision operated in this case in circumstances where there were no such provision in existence at the time of the present offences. Her Honour had regard to historical sentencing practices in determining that special circumstances should be found, leading to a variation of the non-parole period for the aggregate sentence from 75% to 62% of the full term.

55. The submission for the Applicant in support of Ground 3 was similar to that advanced for the Applicant in Woodward v R [2017] NSWCCA 44 where R A Hulme J (Beazley P and Bellew J agreeing) said at [91]-[94]:

“[91]   The applicant argued that non-parole periods fixed in the time in which his offences occurred were generally in the range of one-third to one-half of the total term: see MPB v R [2013] NSWCCA 213 at [26] (Basten JA) and [93] (Garling J). The non-parole period in this case was one-half of the total term which prompted the submission by the applicant that his age and ill-health ‘were given no weight whatsoever’. (AWS [31])

[92]   This submission implicitly carries the notion that the one-third to one-half range of non-parole periods in the past was a practice that was invariable. Further, that when sentencing now, this was a starting point from which a further reduction should be made if there were other factors that could be identified as ‘special circumstances’. The submission should be rejected in both respects.

[93]   The passage in the judgment of Garling J in MPB v R at [93] is as follows:

‘This Court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1 to 4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]-[156]. This is [a] factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.’

[94]   It is notable that his Honour included the word ‘usually’ in describing the past practice. It is also notable that he described it as a matter that a judge ‘should take into account’ in determining whether there are special circumstances. There is no automatic or mandatory consequence; it is a matter for discretionary assessment.”

56. This approach was confirmed in Denham v R [2016] NSWCCA 309 where the Court said at [109]:

“The application of principle, it seems to us, means that while it is necessary to take into account the fact that non-parole periods of between 35-50% of the head sentence were fixed in relation to sentences imposed between 1968 and 1986, no mere mechanical or mathematical transposition of that percentage approach to the task required by the Crimes (Sentencing Procedure) Act is warranted. It remains critical that the non-parole period fixed by this Court represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice.”

57. In the present case, her Honour was not required at law to set a non-parole period in the order of one-third to one-half of the head sentence. Her Honour was required to comply with s 44 Crimes (Sentencing Procedure) Act and, in that respect, to take into account historical sentencing practices for offences of this type. That is the approach which her Honour took on sentence.

58. The operative sentence was the aggregate sentence and the non-parole period fixed for that sentence: Vaughan v R at [89]-[92] (see [37] above). Having identified (unnecessarily) non-parole periods for the indicative sentences, her Honour expressly had regard to past sentencing practices as part of the overall sentencing process. Having taken that factor into account, together with other aspects bearing upon the question of special circumstances, her Honour fixed a non-parole period for the aggregate sentence which was 62% of the head sentence.

59. No error is demonstrated in her Honour’s approach on this aspect. There is no step in the process which her Honour overlooked or mistook. There was no entitlement on the part of the Applicant to have, as part of some suggested automatic process, a non-parole period fixed for the aggregate sentence which was in the order of 50%.

60. This ground of appeal is based upon an erroneous understanding of the general law principles with respect to historical sentencing practices which applied prior to the commencement of s 25AA.

61. I reject the third ground of appeal.

Application of s 25AA Crimes (Sentencing Procedure) Act 1999 in this Court Where the Original Sentence was Passed Before the Commencement of s 25AA

62. As noted earlier in this judgment, this Court heard full and competing submissions as to whether s 25AA was to be applied by the Court in the event that it moved to resentence a person for offences where the original sentence was imposed before the commencement of that provision. This issue was posed somewhat starkly in the present case because Ground 3 itself asserted an error on the part of the sentencing Judge in the approach which she took to the imposition of sentence for historical sex offences.

63. I have reached the conclusion that no error has been demonstrated by the Applicant so that the Court does not move to the exercise of its independent sentencing discretion for the purpose of s 6(3) Criminal Appeal Act in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

64. However, for the reasons explained earlier (at [25]-[26]), it is appropriate to consider the important issues raised concerning the proper construction and application of s 25AA by this Court in the context of the exercise of its powers under the Criminal Appeal Act.

65. Section 19 Crimes (Sentencing Procedure) Act provides as follows:

“19    Effect of alterations in penalties

(1)    If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.

(2)    If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.

(3)    In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.”

66. Section 25AA provides:

“25AA Sentencing for child sexual offences

(1)    A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

(2)    However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

(3)    When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4) This section does not affect section 19.

(5)    In this section –

child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years –

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b)    an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c)    an offence of attempting to commit any offence referred to in paragraph (a) or (b),

(d)    an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c).”

67. The definition of “court” in s 3(1) Crimes (Sentencing Procedure) Act includes courts exercising criminal jurisdiction including the Court of Criminal Appeal. It is clear that a “court” referred to in s 25AA includes the Court of Criminal Appeal exercising its sentencing function under s 6(3) Criminal Appeal Act.

68. It should be kept in mind that s 25AA provides for two areas of express reform:

(a) a sentencing court must sentence an offender for a child sexual offence in accordance with sentencing patterns and practices at the time of sentencing and not at the time of the offence: s 25AA(1);

(b)   a sentencing court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts): s 25AA(3).

69. To assist the proper construction and application of s 25AA, it is appropriate to say a little more about the general law principles abolished by that provision.

70. It appears from the judgment of Spigelman CJ in R v MJR that s 19 Crimes (Sentencing Procedure) Act played an important part in his Honour’s reasoning. After referring to s 19, the Chief Justice derived assistance (at [24]-[25]) from the decision in Radenkovic v The Queen (1990) 170 CLR 623; [1990] HCA 54, noting the statement by Mason CJ and McHugh J in Radenkovic v The Queen that “considerations of justice and equity” may be called in aid by an appellate court when resentencing an offender so that a more favourable law (to the offender) as it stood at the time of the original sentence should be applied on resentencing. Spigelman CJ then continued at [26]-[27]:

“[26]    It is, of course, clear in the context of statutory interpretation that where Parliament manifests an intention that a new sentencing regime operate retrospectively, the courts will give effect to that intention (see Siganto v The Queen (1998) 194 CLR 656 at 662). It may also be the case that the purpose to be served by a change in sentencing practice would require the Court to take into account the new practice even when sentencing for an offence that occurred many years before e.g. an increased emphasis on general deterrence because of prevalence. Nevertheless, that will not necessarily be so.

[27] Section 19 of the Crimes (Sentencing Procedure) Act 1999 and its predecessor reflects a principle of perceived fairness applicable to maximum and minimum penalties, which it is appropriate to adopt for other aspects of the exercise of the sentencing discretion.”

71. The dissenting judgment of Mason P in R v MJR has been acknowledged as a powerful statement in support of what has become the legislative scheme now contained in s 25AA. Mason P said at [37]-[41]:

“[37]    In my opinion the statutes referred to by the Chief Justice whose reasons I have had the benefit of reading and the decision in Radenkovic v The Queen (1991) 170 CLR 623 deal with different situations to that presented here. They concern situations where statute has impacted to some degree on the appropriate sentence. With respect to those who see it otherwise, I do not find them analogous. This relieves me of the burden of considering whether it is legitimate to look at them in seeking to discern a principle of Australian common law.

[38]    Furthermore, the issue does not concern itself with the distinct need to ensure fairness to the individual prisoner in sentencing for a stale crime (cf R v Todd [1982] 2 NSW LR 517 at 519, Mill v The Queen (1988) 166 CLR 59 at 64, R v PLV (2001) 51 NSWLR 736 at 746-8).

[39]    The question has seldom presented itself. The reasons include (a) the relative infrequency with which crimes are prosecuted long after their commission; (b) sentencing patterns seldom vary perceptively over time; and (c) in this State the statutory maximum penalty often changes from time to time.

[40]    Proposition (a) is no longer true in relation to child sexual abuse. In recent years there have been many trials involving events occurring 20 or 30 years previously.

[41]    The problem thus identified has spawned conflicting decisions in this Court. No one's researches have revealed discussion elsewhere, although I would be amazed if this jurisdiction were the only one in the common law world to have faced the issue.”

72. Later, Mason P stated at [57]-[60] (emphasis added):

“[57]    The premise upon which the issue of principle comes to be decided in the area under consideration (penalties for child sexual assault) is that the pattern of sentences has increased. I suspect that there has been an increase, although there is no hard data. If I am right, this putative increase has come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes. These reasons – and there may be others - indicate to me that, in the present context, a sentencing court should prefer today’s attitudes to the laxer patterns of previous years.

[58]    In the converse case – where greater knowledge leads to greater sympathy and lesser sentences - the same attitudes should prevail and for the same reasons. Naturally, statute may provide otherwise.

[59]    Accordingly, I see no reason to differentiate between sentencing patterns that become more or less severe over time. In my opinion, this is more than a point of symmetry. An offender does not acquire some vested legal right to be dealt with as at the date of the offence or some later date representing a reasonable time for detection and trial of the ‘average’ offender.

[60]    None of this means that the wisdom of the past is inferior to the wisdom of the present. It is simply that the judges are not free to prefer the former over the latter when they administer justice according to law. One is reminded of Jackson J’s comment in Brown v Allen 344 US 443, 540 (1953):

“There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”

73. For the purpose of interpretation of s 25AA, regard may be had to extrinsic material, in particular to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision itself, taking into account its context in the Act and the purpose or object underlying the provision: s 34(1)(a) Interpretation Act 1987 (NSW).

74. There are two bodies of extrinsic material which are available for this purpose:

(a)   the second reading speech of the Attorney General, Mr Speakman, concerning the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (Hansard, Legislative Assembly, 6 June 2018): s 34(2)(f) Interpretation Act;

(b)   the 2017 report of the Royal Commission into Institutional Responses to Child Sexual Abuse (“Royal Commission”) which was laid before Parliament before s 25AA was enacted: s 34(2)(b) Interpretation Act.

75. With respect to s 25AA, the Attorney General said in the second reading speech (emphasis added):

“Schedule 3 [6] inserts a new section 25A [sic] into the Act to implement one of the royal commission's key recommendations. This new section will require courts sentencing for historical offences to apply current sentencing practices and standards and our modern understanding of the trauma caused to children by sexual abuse. The purpose of this new provision is to override the current common law, rule that a court must apply the sentencing standards from the time of the offence. In historical cases of child sexual abused this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing of these offences in times past. This perpetuates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim. The new provision will ensure that sentences meet current community expectations, to the extent possible within the upper limit of the maximum penalty from the time of the offence.”

76. Towards the end of the second reading speech, the Attorney General said:

“Overall, the reforms made by this bill represent a significant reworking of the sexual offences in the Crimes Act, as well as introducing a number of new and novel offences. They are based on the years-long and in-depth process of the royal commission into child sexual abuse, which scrutinised the criminal law across Australia to identify shortcomings and to formulate recommendations for reform. The Government recognises that it is critical to ensure that reforms of this scale operate as intended.”

77. Recommendation 76 of the Royal Commission was in the following terms (Report, Criminal Justice Parts VII-X and Appendices, page 322):

“State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.”

78. The Report of the Royal Commission identified the foundation for the historical sentencing principle, based upon Radenkovic v The Queen and R v MJR, in the following way (Report, page 308) (footnotes omitted):

“Under this approach, supported in obiter by the High Court in Radenkovic v The Queen, the sentencing court is to impose a sentence commensurate with the maximum sentence and applicable standards of the time. The New South Wales Court of Criminal Appeal has held that, where an offender is exposed to harsher punishment than that which existed at the time of the offending and reliable statistics or source material exist so to reconstruct the previous sentencing regime, a ‘sentence should be imposed that reflects the applicable statutory maxima and sentencing patterns’. This approach has also been adopted in Queensland and, with qualifications, in the Northern Territory.”

79. In expressing conclusions in support of Recommendation 76, the Royal Commission said (Report, page 318):

“Jurisdictions that have departed from the absolute historical standards approach have been criticised for breaching the principle against retrospectivity. As well as the concerns noted above, some stakeholders have told us in private roundtable discussions that using current standards to sentence for historical offences may be unfair. They have suggested that, at the time of offending, the community, including the offender, may not have been alert to the damage that child sexual abuse can cause and may not have considered the offending to be as serious as it is now generally understood to be. Consequently, where historical standards are not absolutely adhered to, they have suggested that the offender may be sentenced unfairly.

As discussed above, the courts and the Sentencing Council for England and Wales considered that fairness to the offender was secured by the continued application of the maximum penalty that applied at the time of the offending (or any lesser penalty adopted subsequently). Similarly, the House of Lords held that a breach of human rights in this context would only occur if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed under the law in force at the time that the offence was committed.

We are satisfied that, provided the maximum penalty that applied at the time of the offence continues to apply, there is no unfairness in applying contemporary sentencing standards within that maximum penalty. We are also satisfied that this would not result in an offender receiving a higher penalty than the one that was applicable at the time when the offence was committed.”

80. A little later, the Royal Commission said (Report, page 320) (emphasis added):

“The primary objections we have heard relate to the unfairness that this would occasion to the offender, noting that standards have become more punitive over the last 25 years. We are satisfied from what we have heard that those standards were in error, based on misunderstandings of the impact of child sexual abuse on victims. We also note that, where an offender is being sentenced for historical child sexual abuse offences, it is likely that that offender has benefitted from many years of living in freedom in the community – a benefit that may well not have been available if the offender had admitted to the offending and subjected themselves to the criminal justice system at the relevant time.”

81. The Royal Commission continued (Report, page 321) (emphasis added):

“In our view, the maximum penalty for the offence should apply as at the date of the offending, but any principles in legislation, or guidance by way of similar decisions, should be drawn from sentencing practice at the time of sentencing. We are satisfied that this approach represents a fair balance in the complex task of sentencing for these types of offences, and, by virtue of the preservation of the then existing maximum penalty, does not infringe the right of an offender to face no harsher penalty than that which would have applied at the time of the offending.”

82. What can be seen then is that the rationale underlying the introduction of s 25AA(1) was the overturning of the general sentencing principle contained in the majority judgment in R v MJR, based as it was upon the reasoning in Radenkovic v The Queen. So much is clear from the Royal Commission Report and the second reading speech, both of which provide a clear understanding of the legislative intention in enacting s 25AA.

83. To the extent that part of the reasoning in R v MJR and Radenkovic v The Queen imported concepts of fairness to the offender, the clear intention was for the legislation to recalibrate the principles to be applied in all sentencing decisions made by all courts (including the Court of Criminal Appeal) in child sexual offence matters after the commencement of s 25AA on 31 August 2018. The statutory approach in s 25AA(1) reflects the broad approach identified by Mason P in R v MJR and in other jurisdictions considered by the Royal Commission, including the United Kingdom.

84. It has sometimes been said that reliance upon the intention of the legislature as an aid to interpretation of a statute is not straightforward given that the intention itself may be elusive or not readily identifiable: Pearce, “Statutory Interpretation in Australia”, LexisNexis Butterworths, 9th edn, 2019, paragraphs 2.3-2.4. Professor Pearce observed (at paragraph 2.4) that “the most valuable recent statement” in this respect was made by Gageler J in Work Health Authority v Outback Ballooning Pty Ltd (2019) 93 ALJR 212; [2019] HCA 2 at [74]-[77]. Gageler J said at [75]-[77] (footnotes omitted):

“[75]   Groups acting deliberatively according to established procedures can meaningfully be seen to have intentions, distinct from the subjective intentions of their constituent individuals, both as to what collectively they seek to achieve and as to how collectively they seek to achieve it. Legislative assemblies in representative democracies are the paradigm of groups acting deliberatively, as courts in representative democracies have for the most part done well to recognise when construing legislative output.

[76]   ‘[O]ne of the surest indexes of a mature and developed jurisprudence’ is ‘to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning’. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly ‘to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’. That a finding of purpose can involve a ‘contestable judgment’ only heightens that responsibility.

[77]   ‘The words 'intention', 'contemplation', 'purpose', and 'design' are used routinely by courts in relation to the meaning of legislation’ and ‘are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked’. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to ‘the constitutional relationship between courts and the legislature’.”

85. The text of s 25AA, confirmed by relevant extrinsic material, makes clear the intention of the legislature to abolish forthwith for the purpose of all sentencing decisions for child sexual offences falling within s 25AA(5), the general law principle with respect to past sentencing patterns and practices for historical child sexual offences. The intention of the legislature having been made clear in this way, it is the duty of sentencing courts (including the Court of Criminal Appeal) to give effect to that legislative intention.

86. To the extent that considerations of fairness to offenders who have committed historical child sexual offences arise for consideration, it was the clear legislative intention to require attention to be given to contemporary sentencing patterns and practices, with s.19 confirming that the maximum penalty for the relevant offence is that which applied at the time of the commission of the offence: s 25AA(4). In addition, s 25AA(2) makes clear that any relevant standard non-parole period is that which applied at the time of the offence and not at the time of sentencing.

87. These features constitute the express statutory qualifications to the otherwise absolute operation of the provision which confines the attention of all sentencing courts to current sentencing patterns and practices for child sexual offences.

88. If the Applicant’s submission was upheld so that s 25AA was not to be applied by this Court on resentence, then the whole section would need to be put to one side. This would have the effect that s 25AA(3) would also be inapplicable.

89. In Franklin v R, with the agreement of Gleeson JA and Cavanagh J, I said at [125]-[128]:

“[125] As noted earlier s.25AA Crimes (Sentencing Procedure) Act 1999 was not in force at the time when the Applicant was sentenced. However, the community and the Courts were not blind to the consequences of child sex offences in the 1970s and 1980s. In R v Evans (Court of Criminal Appeal, 24 March 1988), this Court (Street CJ, Roden and Newman JJ agreeing) endorsed the comments of the sentencing Judge in that case (Lee J) that:

‘… Parliament has made clear beyond question, that tampering with children of tender years is a matter of grave concern to the community. A child has a right to have its body intact and not defiled by sexual predators and that right is a precious right which must be protected by the parents, by the police and by courts to the full extent of their powers.’

[126]   That said, there has been recognition by the Courts that the level of harm to child victims of sexual offences has been more fully understood in recent decades.

[127]   In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]:

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

[128]   In Director of Public Prosecutions (Victoria) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41], Kiefel CJ, Bell and Keane JJ referred (at [54]-[56]) to the decision of the Victorian Court of Appeal in R v Kaye (1986) 22 A Crim R 366 concerning sentencing for incest offences, and then said at [57]:

‘In the three decades since [R v Kaye], sexual abuse of children by those in authority over them has been revealed as a most serious blight on society. The courts have developed – as the Court of Appeal accepted in ‘emphatically’ rejecting the respondent's submission that ‘there was no violence accompanying the offence’ – an awareness of the violence necessarily involved in the sexual penetration of a child, and of the devastating consequences of this kind of crime for its victims [Director of Public Prosecutions v Dalgliesh (a Pseudonym) [2016] VSCA 148 at [45]-[47]]’.”

90. In the present case, a victim impact statement dated 19 March 2018 was before the sentencing Judge and this Court. In this statement, the victim outlined the terrible consequences for her of the Applicant’s offences. She states that the commission of these offences in her adolescent years has had “a huge impact upon [her] emotional wellbeing” and affected very significantly her school years and many aspects of her life. She speaks of “the heavy burden of thirty-nine years living with the negative effects that this crime has had on my personal, professional and social life”. She concludes her eloquent statement with the words “While I am a victim of crime in this court, in my own mind, importantly, today I am a survivor of child sexual assault’.

91. The rationale for enactment of s 25AA(3) is well demonstrated by the victim impact statement in this case.

92. It would fly in the face of the statutory purpose of s 25AA if this Court, in exercising its function under s 6(3) Criminal Appeal Act, was able to, in some way, bypass s 25AA and apply the discredited principles and understanding which s 25AA was intended to remove. Using the words of the Attorney General in the second reading speech, this approach would serve to perpetuate “our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim”.

93. It is not open to this Court, in exercising its s 6(3) function, to avoid, on a type of discretionary basis, the clear and mandatory statutory injunction contained in s 25AA(1) and (3).

94. As Spigelman CJ observed in R v MJR at [26] (see [70] above), it is open to Parliament to manifest an intention in legislation to alter the approach favoured by the majority in R v MJR. That is precisely what has occurred in the enactment of s 25AA. As the extrinsic material referred to earlier makes clear (see [73]-[81]), the rationale contained in Radenkovic v The Queen concerning the approach of an appellate court in resentencing has also been excluded by the enactment of s 25AA. The legislation has determined what considerations of justice and equity are applicable with the enactment of s 25AA.

95. If the Court had found error and moved to the exercise of sentencing discretion under s 6(3), the Court would take into account all relevant matters, including any evidence of the Applicant’s progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

96. The determination of the question whether a lesser sentence is warranted in law for the purpose of s 6(3) involves an assessment made by reference to such additional evidence as may be admitted before the Court of Criminal Appeal with this Court to apply the law applicable to the particular case. In this case, consideration of the question whether another sentence “is warranted in law” would require application by the Court of Criminal Appeal of the mandatory provisions in s 25AA(1) and (3) Crimes (Sentencing Procedure) Act. The use of the present tense in the expression “is warranted in law” indicates that regard must be had to the current law to the extent that it is intended to operate with respect to any resentencing exercise undertaken by this Court in the face of error on the part of the sentencing Judge: Crump v R [2016] NSWCCA 2 at [68].

97. The law to be applied in this respect is contained in s 25AA and it is not open to this Court to disregard the intention of the legislature clearly reflected in this provision.

98. The Applicant derives no support concerning the operation of s.6(3) from the decision in Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51. In that case, it was acknowledged that this Court is a court of error and that, for the purpose of determining whether error is demonstrated, this Court cannot have regard to a change in the law to determine whether error is demonstrated in the original sentence: Elliott v The Queen at [33]-[36]. That scenario is far removed from the present case.

99. If this Court was moving to exercise the s 6(3) function concerning the Applicant, the approach to s 25AA to be applied is that identified by this Court in R v Cattell [2019] NSWCCA 297 at [103]-[126]. There, Price J (Hoeben CJ at CL and Campbell J agreeing) explained the rationale for s 25AA and the steps to be adopted by a sentencing court applying that provision.

100. With respect to the present case, it is sufficient to observe that application of s 25AA(1) and (3) would not provide assistance to the Applicant on resentencing. It should be noted that, unlike the position in Franklin v R at [145], all the offences for which the Applicant was sentenced fall within the definition of “child sexual offence” in s 25AA(5). Accordingly, no part of the sentencing exercise in the Applicant’s case would require attention to be directed to historical sentencing patterns and practices which are not affected by the enactment of this provision.

Conclusion

101. The Applicant has not made good any of his grounds of appeal so that it is not necessary to embark upon the exercise of independent sentencing discretion under s 6(3) Criminal Appeal Act.

102. However, if the Applicant had demonstrated error so that the s 6(3) exercise was required, then s 25AA was to be applied by this Court as part of that process. I have addressed this issue for the reasons explained earlier in this judgment (at [25]-26]).

103. For the reasons expressed by Lonergan J at [173]-[180], I was satisfied that the Court should not receive unsolicited material from the applicant after judgment had been reserved in circumstances where he had been, and remained, legally represented and where his own lawyers did not seek to make further submissions.

104. For the reasons contained in this judgment, I agree with Lonergan J that leave to appeal against sentence should be granted, but that the appeal ought be dismissed.

105. LONERGAN J: The applicant, Patrick Corliss, seeks leave to appeal against a sentence imposed in the District Court by Herbert DCJ on 12 April 2018. He was sentenced in respect of three counts of assault female and commit act of indecency upon a victim under 16 years of age, and two counts of carnal knowledge of a girl aged between 10 and 16 years of age. Also taken into account on a Form 1 was one count of assault female and commit act of indecency upon a victim under 16 years of age.

106. The sentencing judge imposed an aggregate sentence of 7 years with a non-parole period of 4 years and 4 months.

107. The offences took place between 1 January 1979 and 31 December 1980. The legislative provisions creating those offences have changed since that time. It is well known that the maximum penalty prescribed for the kinds of acts perpetrated by the applicant have increased markedly in the 40 years since these offences were committed.

108. The offence of assault female and commit act of indecency (victim under the age of 16 years) contrary to s 76 of the Crimes Act 1900 (NSW) had at the time a maximum penalty of 6 years imprisonment.

109. The offence of carnal knowledge of a girl aged 10 to 16 years contrary to s 71 of the Crimes Act had at the time a maximum penalty of 10 years imprisonment.

110. There were no standard non-parole periods applicable to any of the offences.

111. For the reasons that follow, I am of the view that none of the grounds of appeal are made out. No error has been shown and the appeal should be dismissed.

112. By operation of s 578A(2) of the Crimes Act, the publication of the victim’s name or any other information that might identify her is prohibited. At the time the matter proceeded for sentence before Herbert DCJ, a pseudonym was provided for the applicant on the basis that the publication of his name would tend to identify the victim. It was conceded by counsel for the applicant before this Court that there was no need for the non-publication order to extend to the applicant’s name and the previous order was varied accordingly.

The appeal

113. The applicant relies on three grounds of appeal:

1. Her Honour erred in failing to adequately assess the objective seriousness of the offending;

2. Her Honour erred in determining the starting point for sequences 6 and 7;

3. Her Honour erred in failing to give full effect to the historical sentencing practices as her remarks suggest she intended.

The offences

114. The sentencing judge was provided with an Agreed Statement of Facts signed by the applicant. The victim was born in 1966. She lived with her mother, her stepfather and a younger brother and sister in [a suburb in Sydney]. The offending was extracted in detail by her Honour:

“During the mid-to-late 1970’s the victim’s mother engaged in an affair with the offender who was born on 25 May 1947. The offender would regularly attend the family address to visit the victim’s mother, while the father was at work in Sydney. At this time the victim was in her final years of primary school. Whilst the offender was a friend or associate of the victim’s mother, as opposed to a friend of the family, over a period of time he became more involved and controlling towards the family.

In January 1979 the family moved to premises at [a suburb in Sydney] and the victim started year 8 at high school. She was twelve years old. The victim shared a room with her sister at the rear of the house, the bedroom had a window which faced the garage and rear gate. After moving, the victim found that her mother and step-father were both absent from the house when the offender visited. The victim’s father was still employed in Sydney at the time and this occurred on a number of occasions between January 1979 to November 1979.

During this time the offender’s relationship with the victim’s mother began to wane and he began to direct his attention towards the victim, in particular he brought her valuable presents such as roller skates and a skate board which he told her to hide from her parents. He would often meet the victim after school, outside her school or at the family residence. The victim found his attention unwelcome and confusing. On several occasions in 1979 when the victim was 12 or 13 years of age the offender locked the door of the victim’s bedroom or her brother’s bedroom whilst he behaved inappropriately towards her inside the room. The circumstances of this are outlined further. This scared the victim and the only other persons who were at home were her younger brother and sister.

On occasions the offender would show the victim pornographic magazines and he would engage in conversations about condoms, lubrication, different types of sexual intercourse and masturbation, following this the offender began to expose his erect penis to the victim and would masturbate in front of the victim and ejaculate. The victim described the offender’s penis as being circumcised and the offender told the victim not to tell anyone.

The offender began to visit the house late at night when the victim’s mother was not home and other family members were asleep. On one particular night the offender climbed in the victim’s window and attempted to lay next to her in the bed, the victim’s sister was asleep in the bedroom at the time. On subsequent occasions the offender came to the victim’s bedroom and asked her out of the house, the victim climbed out of her home as she did not want the offender in the house. The offender would stand on a packing crate to gain access to the window and the same crate allowed the victim to climb out of the window to meet the offender.

The first offence detailed in the facts is an offence, sequence two, which is an offence to be taken into account on a Form 1. On one occasion during this time when the victim was 12 or 13 years of age the offender locked the door while he was with the victim in her bedroom. He covered her mouth and nose when she called out to her siblings. The offender told the victim to be still and quiet. The offender laid on top of the victim, both were fully clothed at the time, the offender placed himself between the legs of the victim and the victim attempted to keep her legs together. The offender then simulated a sex act against the body of the victim and pushed her down in a rough manner.

In 1979 when the victim was 13 years of age the victim would climb out of her bedroom window and meet the offender. The offender would then drive to an address in [a suburb in Sydney] and the offender and the victim would sit in his car and kiss each other on the mouth for a prolonged period of time. The offender would request the victim to expose her breasts, the offender would remove his erect penis and masturbate and ejaculate onto the victim’s stomach or his own stomach, this was a regular occurrence.

Sequence 3 is an offence contrary to s 76 of assault female and commit act of indecency, with a child under the age of 16 years. On one such occasion the victim climbed out of her bedroom window and met the offender, the offender drove to an abandoned service station close to the victim’s home. The offender told the victim to get into the back of the car, undress and lie on the back seat. The offender then rubbed his erect penis on the victim’s vagina until he ejaculated onto her stomach.

Sequence 4 again an offence contrary to s 76. When the victim was 13 years of age the victim went to the home of an aunt who was living in [a suburb in Sydney] to babysit for her cousin and her own younger brother and sister. The offender also knew the victim’s aunt and would attend this residence. On one occasion in 1979 when the victim was babysitting, the offender locked the door to the bedroom at the rear of the house whilst he and the victim were inside the room. The victim asked to be let out but the offender became aggressive and overpowering due to the victim asking the offender to leave and refused to let the victim out of the room. The offender then put his penis in the victim’s mouth and the victim performed oral sex on the offender until he ejaculated in her mouth. The offender told the victim to swallow it and she complied.

Sequence 7 is an offence of carnal knowledge. The victim was 13 years old the offender attended her family home, the offender locked the door of her brother’s bedroom and whilst inside the room with the victim, at the request of the offender the victim removed her underwear and lay on the bed. She spread her legs like she had seen in the pornographic magazines. The offender was naked from the waist down, he put a condom on his penis, applied lubricant and pushed his penis into the victim’s vagina. The offender continued to push his penis into the victim’s vagina but did not go all the way in. The victim stated that it was uncomfortable, she felt pressure and it hurt. This was the first time the victim had engaged in sexual intercourse.

Sequence 5 is an assault female offence contrary to s 76 which follows immediately upon the act of carnal knowledge. The offender once he had removed his penis inserted his finger into the victim’s vagina moving it in and out. The offender then took hold of his penis and rubbed it near the victim’s vagina and ejaculated into the condom. He then put the condom into toilet paper and took it with him. The offender told the victim not to tell anyone.

Indecent assaults and carnal knowledge of the victim stopped in either December 1979 or January 1980 due to the victim becoming pregnant at the age of 13 years following an unrelated offence in [a suburb in Sydney]. [19]

19. R v PC, Remarks on Sentence of Herbert DCJ, p. 1 to 5.

115. The applicant made various admissions during pretext calls recorded in September and October 2016. Evidence of these calls was placed before the sentencing judge. In one of those calls the applicant admitted to other offending. This comprised sequence 6 and was described in the sentencing remarks as follows:

“During the lawfully recorded conversation the offender admitted having penile-vaginal sexual intercourse in his car with the victim, the victim did not recall the offence occurring. The offender said what I can remember is that we were in a car and I put on a condom and I was scared that you were going to get pregnant so I put on another condom on top of the other condom so I had two condoms and you were sitting on top of me in the car with me wearing two condoms. That was very clearly in my mind penetrative sex”. [20]

20. R v PC, Remarks on Sentence of Herbert DCJ, p. 6 to 7.

The Sentencing Remarks

116. Having summarised the facts of the offending, her Honour made reference to the contents of the victim impact statement, noting the long term effects of the offending upon the victim’s life, including an unsuccessful suicide attempt and difficulty with trust and forming relationships. Her Honour took into account the harm done to the victim and to the community consistent with R v Previtera (1997) 94 A Crim R 76.

117. In assessing the objective seriousness, her Honour took into account the differential between the age of the victim, 12 to13 years old and that of the applicant, 31 or 32 years old.

118. Her Honour classified sequence 3 as “objectively serious, as an act involving direct genital contact with a 13 year old child”. [21]

     21. R v PC, Remarks on Sentence of Herbert DCJ, p. 10.

119. For sequence 4, her Honour noted that “this was an offence which involved aggressive conduct by the offender and the indecent act was fellatio”, placing it “in the highest range of objective seriousness for an indecent assault”. [22]

     22. Ibid.

120. In respect of the other sequences her Honour observed:

“Sequences 7 and 5 are offences committed on the same occasion, this was the first act of sexual intercourse with the victim who is 13 years old. I find this offence to be objectively serious. Following the act of intercourse the offender digitally penetrated the child; I find this offence to be objectively serious as it is involving genital penetration of a child of 13 years.

When sentencing the offender for sequence 7 the Court is asked to take into account a further offence being sequence 2, where the offender engaged in a simulated sexual intercourse with a child while they were both fully clothed. This is the earliest offence in time when the victim was 12 of [sic] 13 years old.

Sequence 6 is an act of sexual intercourse which took place in the offender’s car. The charge is based on the offender’s admissions during a precept [sic] telephone call. This offence would have been sometime in the period when the victim was 12 or 13 years of age, most probably 13 years of age because sequence 7 was the first act of sexual intercourse. The offence is objectively serious”. [23]

23. Ibid.

121. Her Honour noted that the applicant acknowledged in the pretext call that he had done the wrong thing, admitting that he “should have known better”, that he was sexually attracted to the victim, that he took advantage of her by encouraging her to have sex, that he got “mixed up between feelings of caring and fatherliness and loving”, and that he had “crossed the line”. [24]

     24. R v PC, Remarks on Sentence of Herbert DCJ, p. 7.

122. Her Honour referred to the Pre-sentence Report which had recorded that the applicant minimised the potential impact of his actions and that he lacked insight into the seriousness of his offending. Her Honour noted that the applicant had acknowledged in the pretext calls that the offending was wrong and that he should have “had more sense” at the time. [25]

     25. R v PC, Remarks on Sentence of Herbert DCJ, p. 13.

123. Given the applicant’s age and the fact that he had not committed any subsequent offences, her Honour was satisfied that he was unlikely to reoffend and that he has good prospects of rehabilitation. She accepted that he had expressed remorse for his actions and that he appeared to accept responsibility.

124. On the question of “moral culpability”, her Honour concluded that the applicant:

“…clearly engaged in behaviour intending to groom the victim to be receptive to his sexual advances, both with material gifts and by sexualising their interactions using pornography, discussing sexual matters and masturbating in her presence. This was a deliberate corruption of a 12 year old girl by a man in his 30’s. The offences in this matter are representative offences and so the applicant does not benefit from a finding that these were isolated offences”. [26]

26. Ibid.

125. Her Honour rejected an argument that there should be a discount under s 23(3) of the Crimes (Sentencing Procedure) Act1999 (NSW) on the basis that the applicant came forward and disclosed an offence (sequence 6) and confessed his guilt to it. Her Honour concluded that the applicant did not make a voluntary disclosure, as he was unaware he was being recorded and so the discount ought not to apply.

126. Her Honour noted however that there was a degree of remorse and contrition evidenced in the pretext telephone call and that was taken into account.

127. Her Honour then dealt with the requirement to sentence the offender in accordance with the laws and sentencing practices applicable at the time the offences were committed:

“Consistent with decision[s] such as R v MJR [2002] NSWCCA 129 and MPB v R [2013] NSWCCA 213, the sentencing outcomes for offences committed during this period would often produce non-parole periods of between 35% and 50% of the head sentence. The sentences themselves were much lower than those currently imposed.

The delay in sentencing is not a significant mitigating factor, the delay was merely a consequence of the nature of the offending. As is so frequently seen in these courts a victim may not report the abuse until decades later, and only when they have gained the strength to confront their history of abuse and abuser. The delay has favoured the offender, he has had the benefit of being able to live for a considerable period of time a normal, professional and personal life. He has had the opportunity to attain a high level tertiary education and the opportunity to demonstrate his rehabilitation. The offender does have health issues and other matters raised in Mr Borkowski’s report and these will result in an additional degree of hardship to the offender in serving a custodial sentence.

Considerations of general deterrence are important for each of the offences committed by the offender”. [27]

27. R v PC, Remarks on Sentence of Herbert DCJ, p. 15.

128. After making a finding that having considered all possible alternatives, no penalty other than imprisonment is appropriate, and noting there “will have to be a degree of accumulation for these offences to reflect the separate nature of the offences and the overall criminality”, her Honour made a finding of special circumstances “due to the historical sentencing requirements”. [28]

     28. R v PC, Remarks on Sentence of Herbert DCJ, p. 16.

129. In providing an indicative sentence for each offence, her Honour stated:

“A discount of 25% to reflect the utilitarian value of the plea has been allowed on the indicative sentences. I will give indicative non-parole periods in the matter to ensure transparency of sentencing so as to identify the starting point for each offence and the non-parole period ratio that accorded with the historical practices”. [29]

29. R v PC, Remarks on Sentence of Herbert DCJ, p. 16 to 17.

This table reflects her Honour’s approach:

Offence	Form 1 Offence?	Finding of Objective Seriousness	Indicative Sentence
Sequence 2 s 76	Yes (attached to Sequence 7)	Taken into account in sentence imposed for Sequence 7
Sequence 3 s 76	No	Objectively serious	1 year and 6 months NPP of 9 months
Sequence 4 s 76	No	In the highest range of objective seriousness	2 years and 7 months NPP of 1 year and 3 months
Sequence 5 s 76	No	Objectively serious	1 year and 6 months NPP of 9 months
Sequence 6 s 71	No	Objectively serious	4 years and 6 months NPP of 2 years and 3 months
Sequence 7 s 71	No	Objectively serious	5 years and 3 months NPP of 2 years and 7 months

130. Her Honour then passed a sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months, identifying the date for eligibility for release on parole as 11 August 2022.

Historical sentencing patterns

131. Before proceeding to deal with the individual grounds of appeal, some mention should be made as to the common law context prevailing at the time the applicant was sentenced.

132. In R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129, Spigelman CJ (with whom Grove and Sully JJ, and Newman AJ agreed), held at [31] that it was appropriate for a court to take into account:

“…the sentencing practice as at the date of commission of an offence when sentencing practice has moved adversely to an offender.”

133. There have been some observations made in this Court as to the difficulties associated with the application of this approach: see Garling J in MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213 at [81]-[93] and Hamill J in MC v R (2017) 271 A Crim R 83; [2017] NSWCCA 316 at [5]-[6] and [22]-[52].

134. In R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534, Howie J outlined an approach to the task which has been cited with approval in this Court on many occasions:

“[67] Firstly, the court must have regard to the maximum penalty for the offence at the time when the crime was committed. This will indicate the policy of the legislature at the time the offence was committed: Oliver (1980) 7 A Crim R 174. It will prescribe the limit of the court's discretion, as the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; Ibbs v The Queen (1987) 163 CLR 447 at 451. Prima facie the maximum penalty indicates the seriousness of the offence: Gilson v The Queen (1991) 172 CLR 353 at 364.

[68]  Secondly, the court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; Ibbs, above, at 452. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie.

[69] A pattern of sentencing, if available, will also indicate the range of appropriate sentence for the type of conduct under consideration. But this pattern will reflect "the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature": Oliver, above, at 177.

[70] The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

[71]  When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time”.

135. In relation to the historical approach to setting non-parole periods, Garling J said this in MPB at [93]:

“This court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1–4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]–[156]. This is factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999”.

136. There is a statement to similar effect by Buddin J in GRD v R [2009] NSWCCA 149 at [20]:

“It is now well established that a judge who is sentencing an offender in respect of historical offences, must do so by reference to the pattern of sentencing that existed at the time of the offending. Obviously that requirement extends to the imposition of an appropriate non-parole period: R v MJR (2002) 54 NSWLR 368; AJB v R (2007) 169 A Crim R 32; MJL v R [2007] NSWCCA 261; Featherstone v R [2008] NSWCCA 71; Bradbury v R [2008] NSWCCA 93. Each of the offences to which the applicant pleaded guilty occurred whilst the Parole of Prisoners Act 1966 was in operation. Unlike the Crimes (Sentencing Procedure) Act 1999, that Act placed no restriction upon the setting of the non-parole period. In AJB (above) [at 36–9] and in Bradbury (above) [at 36] this court observed that non-parole periods imposed under that legislative scheme were usually in the order of between one third and one half of the head sentence”.

137. This Court has since emphasised that although that is the usual position regarding the proportionality of the non-parole period to the head sentence, it is by no means mandatory.

138. In Woodward v R [2017] NSWCCA 44, R A Hulme J (with whom the other members of the Court agreed) provided this analysis:

“[89] As to the third matter of complaint, a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) warranting the imposition of a lesser non-parole period is discretionary. It is a matter about which this Court will be slow to second-guess the assessment of the primary judge: R v Cramp [2004] NSWCCA 264 at [31] and R v Fidow [2004] NSWCCA 172 at [19].

[90] In this case, the judge found special circumstances “in order to avoid any unfairness that might arise by reason of the delay in the prosecution of the present charges”. (AB 29) One product of the delay was that the applicant stood for sentence at an advanced age and with various health issues. His Honour was clearly cognisant of this. The extent of the reduction of the non-parole period was a matter for the discretionary judgment of the primary judge.

[91] The applicant argued that non-parole periods fixed in the time in which his offences occurred were generally in the range of one-third to one-half of the total term: see MPB v R [2013] NSWCCA 213 at [26] (Basten JA) and [93] (Garling J). The non-parole period in this case was one-half of the total term which prompted the submission by the applicant that his age and ill-health “were given no weight whatsoever”. (AWS [31])

[92] This submission implicitly carries the notion that the one-third to one-half range of non-parole periods in the past was a practice that was invariable. Further, that when sentencing now, this was a starting point from which a further reduction should be made if there were other factors that could be identified as “special circumstances”. The submission should be rejected in both respects.

[93] The passage in the judgment of Garling J in MPB v R at [93] is as follows:

“This Court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1 to 4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]–[156]. This is factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999”.

[94] It is notable that his Honour included the word “usually” in describing the past practice. It is also notable that he described it as a matter that a judge “should take into account” in determining whether there are special circumstances. There is no automatic or mandatory consequence; it is a matter for discretionary assessment”.

139. In Denham v R [2016] NSWCCA 309 at [109], in dealing with this question upon re-sentencing, the Court, comprising Payne JA, Fagan and N Adams JJ, said:

“The application of principle, it seems to us, means that while it is necessary to take into account the fact that non-parole periods of between 35–50% of the head sentence were fixed in relation to sentences imposed between 1968 and 1986, no mere mechanical or mathematical transposition of that percentage approach to the task required by the Crimes (Sentencing Procedure) Act is warranted. It remains critical that the non-parole period fixed by this Court represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice”. (Emphasis added).

Ground 1: Failure to assess the objective seriousness of the offending

140. The applicant contended that her Honour failed to give consideration to the objective seriousness of the offending. Parallels were sought to be drawn with R v Van Ryn [2016] NSWCCA 1 at [133]-[135], where R A Hulme J (with whom Leeming JA and Johnson J agreed) set out a multitude of reasons why the approach of the sentencing judge in that case was inadequate. That case involved a plethora of different types of offending including 17 charges over an 11 year period against 9 victims. As R A Hulme J observed at [137]-[141], an assessment of the objective seriousness of the offending is not achieved by mere recitation of the facts. It requires some statement of the reasoning and conclusions as a result of such assessment.

140. The applicant argued that despite detailed submissions addressing the issue of objective seriousness being provided to the sentencing judge, her Honour’s assessments were absent and/or inadequate. Complaint is made that her Honour did not specifically address aggravating factors, save for mentioning that sequences 4, 5 and 7 were committed in the home of the victim. The “global comment” (reproduced at [102] of this judgment) addressing “moral culpability” was insufficient to address the absence of formal findings regarding objective seriousness.

141. Her Honour’s individual characterisations of each of the offences were said to be insufficient:

1. Sequence 3 – “objectively serious, as an act involving direct genital contact with a 13 year old child”. [30]

2. Sequence 4 – “involved aggressive conduct by the offender and the indecent act was fellatio. An act of this nature would be in the highest range of objective seriousness for an indecent assault”. [31]

3. Sequence 7 – “being the first act of sexual intercourse with a child who is 13 is objectively serious”. [32]

4. Sequence 5 – “is an act following the intercourse with a child. This offence is objectively serious as it is involving genital penetration of a child of 13 years”. [33]

5. Sequence 6 – was an act of sexual intercourse based on the offender’s admissions. It was assessed as objectively serious. [34]

   30. R v PC, Remarks on Sentence of Herbert DCJ, p. 10.

   31. Ibid.

   32. Ibid.

   33. Ibid.

   34. Ibid.

143. The Crown argued that the sentencing judge had adequately carried out this task and no error was demonstrated. The requirement to assess the objective seriousness of an offence does not place an obligation upon a sentencing judge to classify the objective seriousness of a particular offence by reference to some scale: Sharma v R [2017] NSWCCA 85 at [63]. What is required is that the sentencing judge “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 at [29].

144. The sentencing judge may adequately carry out this task in an appropriate case by making it clear from his or her findings that the judge regards the offending conduct as serious, without ranking that conduct on a scale: Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [143]; Hurst v R [2017] NSWCCA 114 at [105]; Simpson v R [2014] NSWCCA 23 at [27].

145. As emphasised by the Crown, the offences to which the applicant pleaded guilty were regarded as representative charges against a background of ongoing sexual offending by the applicant towards the victim over the relevant period. Whilst the applicant was not to be sentenced for uncharged acts, the totality of his criminality fell to be assessed against that background.

146. Factors such as the age difference between the applicant, a man in his 30’s, and the victim, a child aged 12-13 years, underscores the manipulation and power imbalance. The conduct ceased only when it was interrupted by other matters. The moral culpability of the grooming behaviour provides important and relevant context to the assessments of conduct the subject of each count.

147. There was evidence of aggressive conduct with respect to sequence 4, as was there evidence of restraint - locking the door and holding his hand over the victim’s nose and mouth when she tried to call out - with respect to sequence 2. The reality was, as found by her Honour, the intercourse and sexual assaults occurred in the context of long-standing grooming of the child, with the sexual attacks escalating in seriousness. In this context, restraint or violence was not necessary, because both manipulation and emotional coercion were embedded features of the offending. The fact that there are some other features that would, if they were present, make the offending more serious, does not mean that they are not serious offences: Morton v R [2018] NSWCCA 84 at [49].

148. The applicant’s argument that sequence 6 is lacking in the necessary detail to allow the sentencing judge to make the necessary findings, is deeply flawed. This count arose from the applicant’s unwitting admission during a covertly recorded telephone conversation with the victim in 2016. The elements of criminality are clear: sexual intercourse in a car between a man 20 years older than a 12 or 13 year old child, against a background of grooming and other sexual offending. The application of two condoms does nothing to reduce the seriousness of this offending.

149. It is undoubtedly correct that the offender’s moral culpability fell to be assessed as part of the overall course of criminal conduct and that course of conduct is capable of impacting upon each offence committed, against the background in which all of the offending took place. As stated in PB v R [2016] NSWCCA 258 at [16], a significant aspect of the seriousness relating to child sexual assault offences depends upon the degree to which an offender has, or is seen to have, exploited the youth of the victim.

150. Her Honour described each incident in detail and made a formal finding that the offending was objectively serious, and the offending in sequence 4 in the “highest range of objective seriousness”. No parallels can be drawn to the situation this Court dealt with in Van Ryn, where no assessment of seriousness was made at all, objective or otherwise.

151. There is no substance in this ground. No error has been demonstrated and this ground of appeal is dismissed.

Ground 2: Error in determining the starting point for sequences 6 and 7

152. The applicant argued that her Honour’s assessment of the objective seriousness of the offences in sequences 6 and 7 must have been erroneously high, demonstrated by comparing her “starting point”, with the applicable maximum penalty of 10 years imprisonment.

153. Complaint is made that having characterised the offences as “objectively serious”, the indicative sentence for sequence 7, before taking into account the 25% discount for the guilty plea, must have been a starting point of 7 years. Given the maximum penalty of 10 years, this starting point is indicative of error. Although her Honour was taking into account the offence on the Form 1, (and that, of necessity, results in a higher sentence), it is unclear what role the Form 1 offence played, because of the absence of a clear statement as to the objective seriousness of that offending.

154. In respect of sequence 6, complaint is made that taking into account the 25% discount means that her Honour’s starting point was 6 years. “Objectively serious” does not correlate to such a high starting point without something more. There was also a failure to reflect in the starting point, her Honour’s “finding in the applicant’s favour” that he had used two condoms in an effort to prevent pregnancy.

155. The Crown submitted that all of these arguments should be rejected. Sequence 7 involved, in the victim’s own home, the applicant locking the bedroom door and having sexual intercourse with her. The victim had never had sexual intercourse before and it hurt her. He could not fully penetrate her and then went on to digitally penetrate her and masturbate to ejaculation. Contrary to the submissions by the applicant, there was significant coercion, both in the previous grooming and sexual activity and then physically trapping the victim in her own home.

156. The Form 1 offence was itself a serious indecent assault and was the first in time. The applicant locked the bedroom door to the child’s bedroom. He covered her nose and mouth when she tried to call out to her siblings. He told her to be quiet. He laid on top of her and placed himself between her legs while she tried to keep her legs closed. He was rough. This was a serious instance of sexual offending against a child in her own home.

157. Given all those circumstances, the indicative sentence of 5 years and 3 months for sequence 7 – after the 25% discount – and with the Form 1 offence taken into account, does not demonstrate error.

158. In respect of sequence 6, the absence of violence, threats or physical force are not features which mitigate the offence. The seriousness lies in the overall circumstances and the ongoing nature of the applicant’s conduct towards the victim. This offence was penile-vaginal intercourse with a 12 or 13 year old child. The wearing of two condoms was directed, no doubt, at self interest and to prevent pregnancy but it does nothing to reduce the criminality of that offence.

159. As noted by the Crown focus needs to be applied to the aggregate sentence, as it is against that aggregate sentence that this appeal is brought. The aggregate sentence has to properly reflect the totality of the criminality involved in all of the offending conduct: Connell v R [2019] NSWCCA 70 at [48].

160. Given the obvious concurrence between the indicative sentences for the five separate offences, even if the indicative sentences for sequences 6 or 7 were too high, such an “error”, if truly it be one, did not affect the appropriateness of the aggregate sentence.

161. The Crown’s submissions are persuasive. No error has been demonstrated and this ground should be dismissed.

Ground 3: Failure to give full effect to the historical sentencing practices as her Honour’s remarks suggest she intended

162. The applicant argued that the effect of her Honour’s remarks was a declared intention to sentence the applicant in a way that secured an outcome where the non-parole period would not exceed 50% of the head sentence. Her Honour’s statement that “sentencing outcomes for offences committed during this period would often produce non-parole periods of between 35% and 50% of the head sentence” was evidence of that intention, combined with her allocation of notional non-parole periods of 50% for each offence. The applicant argued that such an approach would have been in conformity with the approach of this Court in DF v R (2012) 222 A Crim R 178; [2012] NSWCCA 171 at [55]-[56], but the sentence imposed reflected a non-parole period of 62% of the overall sentence so her Honour must have failed to make an appropriate adjustment when she fixed the aggregate sentence.

163. The Crown argued that her Honour’s reference to MJR and MPB demonstrated her understanding of the law regarding historical sentencing practices and the requirement to apply them in this case.

164. It was open to her Honour to adjust the ratio to 62%. The approach of this Court in both Woodward and Denham (as set out in [138] and [139] of this judgment) supports that the setting of the non-parole period was discretionary, not mandatory.

165. The Crown’s submissions are persuasive, particularly when considered in light of the way her Honour dealt with this issue in her Remarks. Her Honour noted the importance of general deterrence with this type of offending. She stated that there “must be a necessary degree of accumulation to reflect the separate nature of the offences and the overall criminality”. The offences were representative and part of a course of conduct that involved the deliberate corruption of a 12 year old girl by a man in his 30’s.

166. The statements of Hoeben CJ at CL in DF v R relied upon by the applicant were made in a different context. There the Court was dealing with a case where the sentencing judge failed to make a finding of special circumstances and the penalties imposed revealed that he could not possibly have applied the sentencing practices in place at the time the offences occurred as was required. The Crown had conceded error. That is not the case here.

167. As stated by Garling J in MPB, there was no automatic or mandatory requirement that the non-parole period be no more than 50% of the head sentence; it is a matter for the discretion of the sentencing judge.

168. The fact that the non-parole period here corresponds to 62% of the head sentence is nothing to which exception should be taken. As observed by this Court in Denham, “it remains critical that the non-parole period fixed by the Court represents the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice”.

169. Her Honour clearly explained the basis of her approach to the aggregate sentence that she imposed. There is no error and this ground of appeal should be dismissed.

Application of s 25AA Crimes (Sentencing Procedure) Act 1999 (NSW)

170. I agree with and endorse the comments of Johnson J in [65]-[100] of this judgment regarding the application of s 25AA to the resentencing exercise, should this Court have determined it necessary to proceed to resentence the applicant.

171. In Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 at 632, Mason CJ and McHugh J stated:

“In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be resentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement”.

172. As amply demonstrated in the analysis of Johnson J, s 25AA comprises a very clear indication of statutory intention that the former “entitlement”, in respect of sexual offending against children of the type engaged in by the applicant, is displaced.

The applicant seeks leave to file a notice of motion after the hearing in the Court of Criminal Appeal

173. Following the hearing of this matter in the Court on 14 August 2019, the Registrar of the Court of Criminal Appeal received a notice of motion sent to the court directly by the applicant, not by his legal representatives.

174. The applicant’s legal representatives told the Registrar that they were not instructed in respect of the proposed notice of motion, nor did they intend to file any submissions in support of that notice of motion.

175. The Crown opposed any reopening of the proceedings.

176. The Court determined not to receive the material and the parties were informed accordingly.

177. As noted by the Crown, the applicant was represented at the hearing of his application for leave to appeal against sentence by a barrister and a solicitor experienced in criminal law. Written submissions were filed on behalf of the applicant, including submissions in reply after receipt of the Crown’s written submissions, and the applicants counsel made detailed oral submissions on his behalf at the hearing of the appeal.

178. The situation that has arisen is similar to that which the Court dealt with in Roach v R [2019] NSWCCA 160 at [186] to [194].

179. This Court has considered, and agrees with and adopts the approach of the Court in Roach and the authorities referred to in [191] and [192]:

“[191] In refusing this application by the applicant, the Court had in mind what was said by McHugh J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330; [2003] HCA 28 at [29]-[31]:

“29 Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

30 This is not the first time that this Court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corporation of Australia Ltd [No 1] [(1981) 147 CLR 246 at 258], Mason J said: ‘The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.’’

31 Once the hearing has concluded, the workload of the Court makes it impossible for the Court to give leave to file further submissions - with all the attendant delay in the Court’s business by a fresh round of submissions. Efficiency requires that the despatch of the Court’s business not be delayed by further submissions reflecting the afterthoughts of a party or - as perhaps is the case in this appeal - some dissatisfaction with the arguments of the party’s counsel.”

[192]   In Nguyen v R [2008] NSWCCA 322, this Court refused to receive an unsolicited document from counsel containing supplementary written submissions furnished after the hearing of the appeal. In the course of explaining this ruling, Tobias JA (James and Price JJ agreeing) said at [30]-[31]:

“30 The time and place to present argument and, if necessary, to seek leave to file supplementary submissions, is during the hearing of the appeal. It is inappropriate to file such submissions after the conclusion of the hearing and to seek the Court’s leave to do so at the same time. Such a practice is to be discouraged and should extend to appeals in criminal matters save in exceptional circumstances.

31 An example of such a circumstance would be where, after judgment was reserved, an authoritative decision of an appellate court directly on point is handed down. Obviously, it should be brought to the Court’s attention and leave sought, which is likely to be granted, to file a supplementary submission explaining how the new decision might affect the outcome of the appeal. In the present case, what appears to be, with respect, an afterthought of counsel does not so qualify.”

180. As observed by the Court in Roach, it is a very high hurdle standing in the way of any such application made after completion of the hearing. This is particularly so when the applicant continues to be represented by counsel and a solicitor who were not prepared to apply to the court to pursue the proposed notice of motion formally and were not prepared to support it by any submissions.

Orders

I propose the following orders:

1. Leave to appeal is granted.

2. Appeal dismissed.

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Endnotes

Decision last updated: 08 April 2020