Director of Public Prosecutions (NSW) v Q (a pseudonym)

[2024] NSWCCA 139

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Q (a pseudonym) [2024] NSWCCA 139

Hearing dates:

26 June 2024

Decision date:

02 August 2024

Before:

Adamson JA at [1]
Price AJA at [2]
Garling J at [252]

Decision:

(1) Director’s appeal allowed.

(2) The aggregate sentence imposed in the District Court on 16 February 2024 is quashed.

(3) In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment of 11 years consisting of a non-parole period of 7 years 4 months commencing on 9 April 2021 and expiring on 8 August 2028 with a balance of term of 3 years 8 months commencing on 9 August 2028 and expiring on 8 April 2032.

(4) The earliest date the respondent will be eligible to be released to parole is 8 August 2028.

Catchwords:

CRIME – Crown appeal against inadequacy of aggregate sentence – 6 offences against s 66C(4) of the Crimes Act 1900 (NSW) (“Crimes Act”) – 2 offences against s 66C(3) of the Crimes Act – Form 1 offences – a single victim – whether indicative sentences manifestly inadequate – whether offences committed whilst respondent was subject to an ADVO is an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing and Procedure Act) 1999 (“CSP Act”) – whether Form 1 offences and aggravating factors adequately reflected in indicative sentences – whether the specification of the non-parole period in standard non-parole period offences in indicative sentences was a technicality – whether offence being committed in the garage of the victim’s home was an aggravating factor under s 21A(eb) of the CSP Act – victim impact statement – s 25AA of the CSP Act – whether heightened need for specific and general deterrence – whether aggregate sentence manifestly inadequate – whether residual discretion should not be exercised – [redacted] – assessment of moral culpability – sentence increased

Legislation Cited:

Crimes Act 1900 (NSW), ss 61, 61J, 66C(3), 66C(4)

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 16

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(2)(j), 21A(2)(g), 23(2), 25AA, 25AA(3), 32, 37, 53A(2)(b), 54B

Criminal Appeal Act 1912 (NSW), s 5D

Cases Cited:

Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115

Aryal v R [2021] NSWCCA 2

Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

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

CMB v Attorney General for New South Wales (2015) CLR 346; [2015] HCA 9

DBW v R [2007] NSWCCA 236

DH v R [2022] NSWCCA 200

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

EG v R [2015] NSWCCA 21

Grange v R [2023] NSWCCA 6

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

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

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297

Kliendienst v R [2020] NSWCCA 98

Lee v R [2020] NSWCCA 244

LN v R [2020] NSWCCA 131

McTague v R [2020] NSWCCA 83

Mill v The Queen (1988) 166 CLR 50; [1988] HCA 70

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 38

Noonan v R [2021] NSWCCA 35

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Postiglione v the Queen (1977) 189 CLR 29; [1997] HCA 26

R v Barker [2016] NSWCCA 193

R v Gavel [2014] NSWCCA 56

R v Janceski [2005] NSWCCA 288

R v M.A.K., R v M.S.K. 167 A CrimR 159; [2006] NSWCCA 381

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Tuala [2015] NSWCCA 8

Ragg v R [2022] NSWCCA 150

RL v R [2015] NSWCCA 106

RP v R [2013] NSWCCA 192

Singh v R [2021] NSWCCA 96

Su v R [2023] NSWCCA 207

Trimarchi v R [2019] NSWCCA 189

Vaughan v R [2020] NSWCCA 3

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (Applicant)
Q (a pseudonym) (Respondent)

Representation:

Counsel:
A Bonnor (Applicant)
T Quilter (Respondent)

Solicitors:
Director of Public Prosecutions (NSW) (Applicant)
Mitchell & Co. Lawyers (Respondent)

File Number(s):

2021/100690

Publication restriction:

Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify the victim is prohibited.

Pursuant to section 578A of the Crimes Act 1900 (NSW), publication of any matter which could identify the victim is prohibited.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 February 2024

Before:

Pickering SC DCJ

File Number(s):

2021/100690

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 February 2024, the respondent was sentenced in the District Court of New South Wales to an aggregate term of 6 years 4 months’ imprisonment with a non-parole period of 4 years 3 months in respect of six counts of aggravated sexual intercourse with a child, contrary to s 66C(4) of the Crimes Act 1900 (NSW) (“Crimes Act”) and two counts of sexual intercourse with a child, contrary to s 66C(3) of the Crimes Act. At the time of sentencing, the judge took into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) six Form 1 offences which included two offences of sexual intercourse with a child contrary to s 66C(3) of the Crimes Act, three offences of aggravated sexual intercourse with a child contrary to s 66C(4) of the Crimes Act and one offence of common assault contrary to s 61 of the Crimes Act.

All of the offences were committed in the course of a purported relationship between the victim and the respondent over a period of about six months in late 2019 and early 2020 when the victim was 14 and 15 years of age. The respondent was 24 and 25 of age. The respondent was arrested in January 2021 in relation to breaches of an ADVO involving the victim and was subsequently charged with the above offences in April 2021.

The Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), appealed against the sentence contending that the aggregate sentence is manifestly inadequate.

The respondent contended that none of the indicative sentences were manifestly lenient and submitted that the Court should exercise its residual discretion to decline to intervene.

The Court (Price AJA, Adamson JA and Garling J agreeing) held, allowing the appeal:

1. The aggregate sentence was manifestly inadequate. It did not reflect the totality of the criminality involved.

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; R v Barker [2016] NSWCCA 193; House v R (1936) 55 CLR 499; [1936] HCA 40; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, considered.

1. The sentence imposed in the District Court of New South Wales on 16 February 2024 should be quashed and the respondent should be re-sentenced to an aggregate term of 11 years’ imprisonment with a non-parole period of 7 years 4 months. In re-sentencing the respondent, the Court took into account factors including the fact that many of the offences were committed while the respondent was on conditional liberty, the respondent’s substance use, criminal history, age and emotional immaturity, and the impact of the offending on the victim.

Field v R [2020] NSWCCA 105; R v Gavel [2014] NSWCCA 56; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, considered.

1. The Director had demonstrated that the residual discretion to decline to intervene should not be exercised.

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9, considered.

JUDGMENT

1. ADAMSON JA: I agree with Price AJA.

2. PRICE AJA: This is a Crown appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”) against the aggregate sentence imposed on Q (a pseudonym) (the respondent) by Pickering SC DCJ (the judge) on 16 February 2024 in the District Court at Sydney. The Director contends that the aggregate sentence is manifestly inadequate.

3. The respondent entered pleas of guilty before the judge on 24 March 2023 to an indictment containing the following counts:

1. Count 1: that he, between 1 June 2019 and 31 July 2019 at a suburb in Northern Sydney had sexual intercourse with the victim, a child aged 14 years, in circumstances of aggravation, namely that he took advantage of the victim being under the influence of alcohol or a drug in order to commit the offence contrary to s 66C(4) of the Crimes Act 1900 (NSW) (“Crimes Act”).

2. Count 2 was in identical terms to count 1.

3. Count 3: that he, between 1 November 2019 and 30 November 2019 at another suburb in Northern Sydney had sexual intercourse with the victim, a child aged 14 years, contrary to s 66C(3) of the Crimes Act.

4. Count 4: that he, between 1 November 2019 and 26 December 2019 at a further location in Northern Sydney had sexual intercourse with the victim, a child aged 14 years, contrary to s 66C(3) of the Crimes Act.

5. Count 5: that he, between 16 December 2019 and 17 December 2019 at Sydney had sexual intercourse with the victim, a child aged 14 years, in circumstances of aggravation, namely that he took advantage of the victim being under the influence of alcohol or a drug in order to commit the offences contrary to s 66C(4) of the Crimes Act.

6. Count 6: that he, between 27 December 2019 and 31 December 2019 at Sydney had sexual intercourse with the victim, a child aged 14 years, in circumstances of aggravation, namely that he took advantage of the victim being under the influence of alcohol or a drug in order to commit the offence contrary to s 66C(4) of the Crimes Act.

7. Count 7: that he, between 27 December 2019 and 31 December 2019 at Sydney had sexual intercourse with the victim, a child aged 14 years, in circumstances of aggravation, namely that he at the time of, or immediately before or after, intentionally or recklessly inflicted actual bodily harm to the victim contrary to s 66C(4) of the Crimes Act.

8. Count 8: that he, between 1 January 2020 and 5 January 2020 at a suburb in Western Sydney had sexual intercourse with the victim, a child aged 14 years in circumstances of aggravation, namely that he took advantage of the victim being under the influence of alcohol or a drug in order to commit the offence contrary to s 66C(4) of the Crimes Act.

4. At the request of the respondent, the judge took into account on sentence pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) the following offences:

• Count 3: Form 1 – between 1 November 2019 and 30 November 2019 at a suburb in Western Sydney had sexual intercourse with a child between 14 and 16 years of age, contrary to s 66C(3) of the Crimes Act.

• Count 4: Form 1 – between 1 November 2019 and 30 November 2019 at a further location in Northern Sydney had sexual intercourse with a child between 14 and 16 years of age, contrary to s 66C(3) of the Crimes Act.

• Count 5: Form 1 – two offences between 17 December 2019 and 19 December 2019 at Sydney of sexual intercourse with a child between 14 and 16 years of age, in circumstances of aggravation, namely taking advantage of the child being under the influence of alcohol and or a drug contrary to s 66C(4) of the Crimes Act.

• Count 7: Form 1 – one offence of common assault contrary to s 61 of the Crimes Act at Sydney between 27 December 2019 and 29 December 2019.

• Count 8: Form 1 – between 1 January 2020 to 5 January 2020 had sexual intercourse with a child between 14 and 16 years of age in circumstances of aggravation, namely taking advantage of a child being under the influence of alcohol and or a drug contrary to s 66C(4) of the Crimes Act.

5. The judge sentenced the respondent to an aggregate term of 6 years 4 months’ imprisonment with a non-parole period of 4 years 3 months commencing on 9 April 2021. The non-parole period expires on 8 July 2025. The aggregate head sentence expires on 8 August 2027.

6. The table below sets out the maximum penalties and standard non-parole periods (SNPP) (where applicable) for each offence and his Honour’s indicative sentences. [redacted].

Count	Offence	Maximum Penalty/SNPP	Indicative sentence/NPP
1	s 66C(4)	12 years / 5 years	14 months / 7 months
2	s 66C(4)	12 years / 5 years	18 months / 9 months
3	s 66C(3)	10 years	15 months*
4	s 66C(3)	10 years	18 months*
5	s 66C(4)	12 years / 5 years	3 years / 18 months*
6	s 66C(4)	12 years / 5 years	2 years 9 months / 17 months
7	s 66C(4)	12 years / 5 years	3 years 3 months / 20 months*
8	s 66C(4)	12 years / 5 years	2 years 6 months / 16 months*

*The indicative sentences include the matter/s on Form 1.

7. Before proceeding further, it is convenient to address the significance of the Form 1 offences to the judge’s sentencing task. In Director of Public Prosecutions (NSW) v TH ^[1] (“TH”), Beech-Jones CJ at CL (as his Honour then was) summarised the relevant principles at [23]-[24]:

“First, the Form 1 offences can be taken into account on sentencing as demonstrating an “additional need for personal deterrence and retribution” in respect of the substantive offences on the indictment (Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); “Abbas” and Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; “Attorney General’s Application”). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General’s Application at [18]).

However, the inclusion of an offence on a Form 1 does not of itself increase the assessment of the objective seriousness of the substantive offence (Singh v R [2021] NSWCCA 96), although the facts and circumstances of the Form 1 offence (or uncharged acts) may be relevant to the assessment (see Ragg v R [2022] NSWCCA 150 at [38]−[47]; “Ragg”). For example, such circumstances might place the substantive offence in context (LN v R [2020] NSWCCA 131 at [54] per Basten JA; “LN”) or, if they involve the infliction of harm on the victim immediately prior to the substantive offence, they might demonstrate the victim’s vulnerability when the substantive offence was committed (LN at [159]; Ragg at [44]).”

1. [2023] NSWCCA 81.

The respondent’s offending

8. During the proceedings on sentence, a lengthy Statement of Agreed Facts was tendered which the judge incorporated in his sentencing remarks. At the time of the offences, the respondent was 24 and 25 years of age. The victim was 14 and 15 years of age. They had never met before 6 June or 6 July 2019.

9. Although it was an agreed fact that when the respondent first met the victim on 6 June or 6 July 2019 and had spoken to her throughout the night, he accepted that “the victim disclosed her age”, ^[2] the respondent gave evidence before the judge that he did not remember the victim telling him that she was 14. ^[3] He denied that from the first encounter, he knew the victim was 14. ^[4]

   2. Statement of Agreed Facts, p 1.

   3. Tcpt, 17 November 2023, p 31(21-22).

   4. Tcpt, 17 November 2023, p 35(24-25).

10. It is evident from the judge’s sentencing remarks that he did not accept this evidence, finding that the respondent was clearly aware of her age.

11. The following summary of the respondent’s offending is drawn from the Statement of Agreed Facts.

Counts 1 and 2 – s 66C(4)

12. On 6 June or July 2019, the victim and her friends were at an oval in Northern Sydney. The respondent walked past and was asked by one of the group if he could buy them alcohol, which he did. The group, including the victim and the respondent, went to a nearby soccer club and drank the alcohol. The respondent spoke to the victim, and she told him she was 14 years of age.

13. Some members of the group left. The respondent, the victim, and four others walked to a nearby car park and smoked cannabis. The respondent took the victim into a stairwell and was “feeding” her wine. At that time she “felt really drunk”.

14. The victim sat on the stairs. The respondent exposed his penis and pushed the victim’s head towards it. The respondent’s penis went into the victim’s mouth and the respondent kept pushing her head down onto it. The victim performed fellatio on the respondent (count 1). At one stage, she felt sick and threw up, then continued fellatio. She stopped when she noticed a friend standing close by, watching and smiling. The victim then ran downstairs.

15. The respondent and the victim then walked across the carpark to a second stairwell, where he exposed his penis and told her to get on top of him. The respondent removed the victim’s underwear and unsuccessfully attempted to insert his penis into her vagina. The respondent then said “let’s go somewhere else”.

16. The respondent and the victim then walked to a BP service station about 100 metres away. In the female bathroom, he stood behind the victim and bent her over a sink. Without a condom, the respondent then inserted his penis into the victim’s vagina and engaged in intercourse, which lasted “seconds” (count 2). The respondent ejaculated into the victim’s vagina, which she had told him not to do.

17. The respondent and the victim then left the BP service station and rejoined the group at the soccer club. The respondent asked the victim to return with him to his father’s house, and to say that she was 19 years old. The victim refused.

Count 3 – s 66C(3)

18. One evening around November 2019, the victim was in a suburb in Northern Sydney and received a text message from the respondent. She agreed to meet him. The respondent purchased alcohol and they walked to his friend’s unit, where there were several other people present. The respondent introduced the victim and claimed she was 18 or 19 years of age.

19. The respondent and some others smoked methamphetamine, which he offered to the victim but she refused. She consumed alcohol that the respondent had purchased.

20. At some stage the respondent told the victim to come to the bathroom with him. He had a shower. When he exited the shower, and while still naked, he grabbed the victim and bent her over the bathroom sink. The victim removed her jeans and underwear. She told the respondent to wear a condom, handed one to him, and watched him place it on his penis.

21. The victim then faced the mirror and the respondent stood behind her. He placed his penis inside her vagina and began sexual intercourse (count 3). The victim then noticed that the condom she had given the respondent was on the floor and pushed him off her. She said to him, “[w]hat the fuck, you’re not even wearing it”. She gave him another condom and watched him place it on his penis.

22. The victim again faced the bathroom sink and the respondent stood behind her. He placed his penis in her vagina and they resumed sexual intercourse. The respondent ejaculated inside her vagina. The victim realised he was not wearing a condom and became upset. The Crown accepted that it could not prove how the respondent came not to be wearing a condom. The respondent then finished his shower and the victim and the respondent returned to the lounge room. There was no one left inside the unit other than them.

23. Later that night, in the lounge room, the respondent picked up the victim and placed her on the armrest of the lounge. The respondent placed his penis inside her vagina and had sexual intercourse with her, without a condom (Form 1 offence).

Count 4 – s 66C(3)

24. At some stage prior to November 2019, the respondent and the victim talked about the age difference between them. The respondent told the victim that when they met people she should give a fake name and should say she is 18 years old. Around this time, the victim’s mother saw the victim wearing a bracelet, and the victim told her mother that she received it from a boy she was seeing who was 15 years old and was in Year 9 at school. A few days later, the victim told her mother that the boy she was seeing was 17 years old and was named Thomas.

24. On or about 25 November 2019, the victim asked her mother if she could have the respondent stay over at their house. The victim’s mother refused.

25. Without her mother’s knowledge, the victim let the respondent into the garage of the residence, where they had penile-vaginal intercourse (Form 1 offence).

26. At some stage, the respondent asked the victim to have anal sex. He told her that she did not love him if she did not allow him to have anal sex with her. She reluctantly agreed. The respondent placed his penis inside her anus. She felt pain. The respondent continued penile-anal intercourse until he ejaculated into her anal canal (count 4).

27. The next morning, the respondent wanted to have a shower. The victim took him around the house, as she knew her mother was out. The victim’s mother came home and found the victim and the respondent in the victim’s bedroom. The respondent told the victim’s mother his name was Thomas and he was 17 years old.

Apprehended domestic violence order

29. On 16 December 2019, police received a triple zero call about a male and a female lying on a nature strip in a suburb in Northern Sydney. Police attended and found the respondent and the victim together. The victim’s mother was called, and she told police that she believed the victim and respondent were in a sexual relationship. Police questioned the pair and they both denied being in a relationship.

30. On the same day, police obtained an apprehended domestic violence order (ADVO) for the protection of the victim, naming the respondent as defendant. That day, police met with the respondent at the Mental Health Unit of a hospital in Northern Sydney, where the respondent was being discharged. Police told him that if evidence became available that he was engaged in a sexual relationship with the victim, he would be arrested and charged, as the victim was 14 years of age. The respondent told police he understood.

Count 5 – s 66C(4)

31. [redacted].

32. [redacted].

33. [redacted].

34. [redacted].

35. [redacted].

36. When he returned, the victim was still upset. The respondent asked her to have anal intercourse, but she refused. He said she did not love him if she did not let him have anal sex with her. She felt like she was being pressured into agreeing, and ultimately agreed.

37. Using hair conditioner as lubricant, the respondent had penile-vaginal intercourse with the victim without a condom on the kitchen bench (Form 1 offence).

38. The respondent then stopped the intercourse and the victim performed fellatio on his penis (Form 1 offence).

39. The respondent again placed hair conditioner on his penis and on the victim and inserted his penis into her anus. The victim felt pain and told the respondent to stop (count 5). When the intercourse finished, the victim and the respondent slept. The victim woke up a short time later and realised she was bleeding from her anus and vagina. She was not menstruating. She went to the bathroom and found blood in her urine.

Counts 6 and 7 – s 66C(4)

40. The victim turned 15 years old in December 2019. On that day she and the respondent met in a suburb in upper Northern Sydney and together they travelled to the Sydney CBD. On the way they purchased a gram of MDMA. They booked a room at the same hotel as previously, and consumed MDMA together. The respondent injected it while the victim consumed some orally.

41. The respondent and the victim were worried that she might be pregnant. The respondent punched her in the abdomen to “get rid of the baby” and told her that the MDMA she had consumed would make it hurt less. The respondent proceeded to randomly punch the victim in the abdomen with force, more than once over the day. The victim felt pain when she was punched (Form 1 offence).

42. During the evening and night of 27 December 2019, the victim and the respondent had penile-vaginal intercourse on 8 occasions. During this time, the victim recalls the respondent being “physically rough” including pulling her hair and holding her by the throat as part of the sexual intercourse.

43. Throughout the night the respondent asked to have anal intercourse with the victim which she refused. The victim describes the respondent’s behaviour as “aggressive” that evening. After being asked to have anal intercourse again, the victim felt pressure and agreed. The respondent again used hair conditioner as lubricant and had penile-anal intercourse with the victim (count 6). The victim felt pain.

44. The respondent then took an empty Midori (an alcoholic spirit) bottle from the hotel room. He pushed the nozzle of the bottle into the victim’s vaginal canal (count 7). The victim felt pain and noticed blood coming from her vagina. The respondent removed the bottle and said “oh shit”. The victim said she was in pain but was also very intoxicated from consuming MDMA earlier. They continued to have sexual intercourse during this time. The victim went home the next day.

Count 8 – s 66C(4)

45. On 31 December 2019 the victim met the respondent and other persons in Sydney CBD to watch the midnight fireworks, and then they took a bus to a suburb in Northern Sydney. The respondent told her to wait for him at a carpark, which she did for hours before he returned with methamphetamine. He injected her with methamphetamine then injected himself. They went swimming at the local beach.

46. The next thing the victim remembers was being in a carpark at a shopping mall with the respondent. The respondent said he wanted her to sleep with someone so they could have a place to stay for the night. She agreed. The respondent then used the victim’s phone to organise a threesome with an unknown male called Peter.

47. The victim and the respondent then travelled to an apartment in Western Sydney and met Peter, who gave the victim alcohol. The respondent and Peter consumed methamphetamine and blew smoke into the victim’s face. She asked them to stop several times.

48. The respondent removed the victim’s clothes as Peter watched. The respondent had difficulties maintaining an erection. He told the victim to have sex with Peter, who then had penile-vaginal intercourse with her.

49. The victim was on the bed with Peter and the respondent. She performed fellatio on the respondent in an attempt to get him aroused, but he did not obtain an erection (Form 1 offence).

50. Peter left for work and the respondent and the victim remained in Peter’s apartment. About an hour after Peter had left, the respondent and the victim were on Peter’s bed. The victim was sitting on top of the respondent. The respondent inserted his penis into the victim’s vagina, and they had sexual intercourse (count 8).

The proceedings on sentence

51. During the proceedings on sentence on 17 November 2023, the Victim Impact Statement (VIS) which consisted of seven pages was read to the court. The VIS included:

“My relationships were so deeply affected by this and are still to this day. I still have a deep-rooted fear of men, and this sometimes becomes irrational. I break down, I go into a state of fight or flight, and I just freeze. I can’t talk and sometimes can’t even breathe. I can’t be around anger especially if it is a man it scares me so much I have panic attacks and they get so bad to the point I feel that I am going to die. I have a lot of trust issues as well and it hurts to see all the people my age and all my friends getting their first boyfriends and living normal lives and deep down, I know I never got to experience that.

I was completely robbed of my first innocent relationship.” ^[5]

5. Victim Impact Statement (‘VIS’), at [2].

52. The victim stated that she had missed years of school and meaningful events such as her Year 10 formal and Year 10 graduation. She stated that she almost dropped out of school. She went on to say:

“I wouldn’t have finished in the top 10% of NSW in my mechanics class at TAFE and at the top of my class if I didn’t have a support system and people encouraging me to keep going.” ^[6]

6. VIS at [2].

53. She described how hard it was to go back to school. She described being questioned and having no energy to maintain any of her friendships.

54. The victim recounted that she fell into a deep depression for two years and “became extremely addicted to cannabis as it was the only thing helping me cope”. She described having nightmares and being unable to eat. She said she stopped looking after herself. She spoke of her declining health, developing “cannabinoid hyperemesis syndrome” and developing a severe eating disorder losing around 40 kg.

55. The Crown tendered a report from Dr David Gordon, the victim’s treating psychiatrist from June 2020. Dr Gordon reported that the victim was “diagnosed with post-traumatic stress disorder (PTSD) secondary to an alleged abusive relationship and sexual assault. She also had developed cannabis use disorder driven predominantly by the PTSD, and this led on to cause cannabis hyperemesis syndrome”. ^[7] Dr Gordon stated his last involvement with the victim’s case was in June 2021.

    7. Report of Dr David Gordon dated 12 July 2023.

56. The Crown tendered the respondent’s criminal history, two breaches of parole reports and a sentencing assessment report which had been prepared for proceedings before the Local Court and not the proceedings before the judge.

[redacted]

57. [redacted].

The respondent’s subjective case

58. The respondent gave evidence before the judge and a report of Patrick Sheehan, a forensic psychiatrist, was tendered on his behalf. Six character references were also tendered.

59. The respondent was 24 and 25 years old when he committed the offences. He was 29 years old when sentenced by the judge which is his present age.

60. In a letter to the judge, the respondent’s father referred to the respondent’s background and the difficulties his son had with alcohol. He stated that the respondent “was a practicing alcoholic for many years”. ^[8]

    8. Reference of the respondent’s father dated 5 July 2023, p 1.

61. The respondent’s father referred to many attempts to have his son off the streets and to receive required care. He was “grateful that his [son’s] incarceration has saved his life”. ^[9] He referred to the respondent returning to his Christian upbringing which included a life of sobriety.

    9. Reference of the respondent’s father dated 5 July 2023, p 2.

62. The respondent’s father stated that he and his wife were happy to have the respondent live with them on a permanent basis or until the respondent felt confident to live independently.

Mr Sheehan’s report

63. Mr Sheehan reported that the respondent’s development was not subject to social deprivation but was disadvantaged through a strong family disposition towards addictions, and he was exposed to negative role modelling by his older brother, a drug user, who he looked up to. His older brother had chronic problems with substance abuse and criminality. The respondent commenced using alcohol and cannabis aged 14 years, increasing in severity and frequency over time. By the age of 17 years, he was alcohol dependent and ceased cannabis use in favour of alcohol. He would regularly drink to black out.

64. The respondent reported a history of multiple failed attempts at residential rehabilitation. He also acknowledged a history of intravenous methylamphetamine use.

65. The respondent was diagnosed with attention deficit hyperactivity disorder (ADHD) when he was in Year 1 or 2 at school. He reported a troubled school history being suspended on multiple occasions and was “asked to leave” during Year 9. He has never returned to study. Mr Sheehan noted that the respondent suffered a brain injury in a motor vehicle accident in February 2018. He opined that the respondent’s offending could not be attributed to the traumatic brain injury.

66. Mr Sheehan noted that the respondent reported a “suboptimal work history, undermined by alcoholism and unstable lifestyle”. Mr Sheehan opined that the respondent met the diagnostic criteria for alcohol use disorder (severe, in sustained remission in a controlled environment). He also had a polysubstance use disorder and met the criteria for gambling disorder. Mr Sheehan did not believe the criteria for paraphilia were met. Mr Sheehan opined:

“In my view there are evident indicators of personality vulnerability, self-focus, impulsivity, emotional immaturity, unstable relationships, aggression, self-sabotage but these features have also been badly aggravated by his substance use history. He has some traits of borderline personality and antisocial personality.” ^[10]

10. Mr Sheehan’s report dated 12 June 2023, p 12.

67. Mr Sheehan stated that the respondent acknowledged “the offences in a broader sense, consistent with his plea” however noted that the respondent “did seek to minimise his knowledge of the [victim’s] age at the earlier stages of offending, but fully acknowledged that he had persisted with sexual contact after he had been served with an AVO [sic]”. The respondent said that he was “in love” with the victim and he “couldn’t let it go”. ^[11]

    11. Mr Sheehan’s report dated 12 June 2023, p 12.

68. Mr Sheehan assessed the respondent’s risk of sexual re-offending using the Static-99R, an actuarial risk assessment. The respondent’s total score was 9-10 which placed him in the “Well Above Average Risk” category relative to other male sexual offenders. Mr Sheehan noted several factors inflating the respondent’s score which included having been served with an ADVO during his offending.

69. When referring to the respondent’s dynamic risk factors, Mr Sheehan observed that:

“[The respondent’s] emotional immaturity may likely be related to his offending by way of allowing him to identify emotionally with a young person, rather than a same aged peer.” ^[12]

12. Mr Sheehan’s report dated 12 June 2023, p 15.

A summary of the respondent’s evidence

70. The respondent’s evidence included that he took responsibility for what he did and had not intended to hurt or harm the victim. He said that after having heard the VIS, he felt “ashamed that [he] put her through all that and she had to go through that because of [him]”. ^[13]

    13. Tcpt, 17 November 2023, p 22(40-41).

71. The respondent described his mental state at the time as being “lost in addiction”. He said he was homeless and that nobody cared about him. He said that around that time, he had attempted to take his life around “two, maybe three times”. ^[14]

    14. Tcpt, 17 November 2023, p 23.

72. He said that the victim was kind to him which made him feel good. He liked her a lot and would say he was in love with her. He accepted that he had done some things to her which were not consistent with love.

73. The respondent testified that he was using alcohol on a daily basis from November 2019 to January 2020 and would use drugs “whenever [he] could get [his] hands on them”. ^[15] He said that he had been sober for about two and a half years and his main reflection was that it was not right to live or treat people like that. [redacted].

    15. Tcpt, 17 November 2023, p 24(38-39).

74. In cross-examination, he accepted that on many occasions, he had purchased alcohol for the victim and himself to get drunk. He accepted that he had introduced the victim to prohibited drugs. He agreed that engineering a “threesome” was not indicative of love. Furthermore, he acknowledged that inserting the Midori bottle into the victim’s vagina did not indicate that he was in love with her.

75. I have referred to the respondent’s evidence at [9] above, where he denied knowing the victim was 14 years of age from their first encounter.

76. After hearing oral submissions, the judge adjourned the proceedings for sentence on 30 November 2023. However, the respondent was not sentenced until 16 February 2024.

The respondent’s criminal history

77. Prior to the commission of counts 1 and 2, the respondent’s criminal history reveals a conviction for common assault in 2017 for which he was placed on a 12 month s 9 bond; a call-up for breach of that bond in 2018 for which he was placed on 12 months supervision and a contravention of an AVO for which he was sentenced to a Conditional Release Order (CRO) for 12 months on 21 November 2018.

78. Prior to the commission of counts 3 and 4, he was on 16 October 2019 sentenced to three Community Correction Orders (CCOs): one for shoplifting, one for behave in an offensive manner, and the other for a contravention of an AVO. The CCOs were for 12 months commencing on 16 October 2019 and concluding on 15 October 2020.

79. Prior to the commission of counts 5, 6, 7 and 8, he was on 13 November 2019 placed on a CCO for shoplifting for 9 months commencing on 13 November 2019 and concluding on 12 August 2020.

80. The respondent’s criminal history further reveals that on 1 April 2020, he was sentenced to three concurrent terms of imprisonment for 12 months with non-parole periods of 3 months commencing on 5 February 2020 for contravention of an AVO, common assault and resisting a police officer. He was further sentenced for two offences of contravening an AVO to two concurrent terms of imprisonment of 12 months with non-parole periods of 2 months commencing on 5 February 2020.

81. He was released on parole on 4 May 2020.

82. On 23 September 2020, he was sentenced to three concurrent terms of imprisonment of 12 months with non-parole periods of 3 months commencing on 30 July 2020 for the offences of resist police, contravention of an AVO and stalk/intimidate.

83. On the same day, he was sentenced to 2 months’ imprisonment for a call-up for shoplifting and for a further call-up for shoplifting to one month imprisonment, both sentences commencing on 30 July 2020.

84. He was released to parole on 14 December 2020.

85. On 3 February 2021, he was sentenced to two concurrent terms of imprisonment of 3 months commencing on 30 January 2021 for two charges of contravening an ADVO in January 2021 which were related to the victim in the present case.

86. The respondent entered into custody on 30 January 2021.

Some findings by the judge in his sentencing remarks

87. The judge’s sentencing remarks consist of 41 pages. His Honour’s remarks are unusually discursive for a reserved judgment. My summary of his Honour’s findings attempts to mirror the order in which they were made.

88. When dealing with count 2, the judge observed that the respondent did not wear a condom with a 14 year old which added to the seriousness of the offending because he risked causing a sexual disease or pregnancy. However, the respondent was not sentenced on the basis that he engaged intentionally against any agreement to wear a condom, which would amount to a more serious offence. The judge accepted the respondent’s counsel’s submission that this “was, in many ways, a quick act and he ejaculated quickly because of the circumstances that were occurring”. ^[16] His Honour added that this did not reduce the seriousness of the offending.

    16. Tcpt, 16 February 2024 (‘ROS’) at [4].

89. His Honour observed that “at this stage … the principal basis of the criminality was clearly that he was aware of her age. He was clearly aware that she was affected by alcohol. After all, he had bought it, he had seen her drinking and he was aware also that they had smoked cannabis.” ^[17]

    17. ROS at [4].

90. His Honour noted the significant age difference between the respondent and the victim.

91. The judge found that counts 1 and 2 were below the midrange of objective seriousness.

92. His Honour said a relevant matter in setting individual indicative sentences was “the growing moral culpability of the [respondent’s] offending”. ^[18] The judge however said that whilst the offending at the first stage was serious, it was not as serious as some of the later offending because not only did the respondent know what her age was but it “became even clearer to him and the significance of her age [was] even more important as the facts moved forward”. ^[19]

    18. ROS at [5].

    19. ROS at [5].

93. When referring to count 3, his Honour noted that this was a charge under s 66C(3) of the Crimes Act and did not have the aggravating features of the victim being under the influence. His Honour referred to the Form 1 offence and said that there should be some adjustment to the indicative sentence to reflect the seriousness of the Form 1 matter. His Honour noted that the respondent was not wearing a condom when he had sexual intercourse with the victim.

87. In respect of count 4, the judge recounted that the victim reluctantly agreed to penile-anal intercourse which showed the degree of manipulation by the respondent. His Honour noted that the respondent “placed his penis inside the victim’s anus, she felt pain, he continued that penile anal intercourse and ejaculated into her anal canal, again risking sexual disease”. ^[20]

    20. ROS at [9].

88. The judge found that count 4 was similar in seriousness to count 3 and went on to say “actually despite the different offences, not that dissimilar in seriousness to count 1 and count 2”. His Honour observed that a Form 1 offence attached to count 4 would add some degree of additional penalty for general denunciation. The judge said:

“But up to this stage there was at least in the way in which the victim and the offender were interacting, although his behaviour was illegal, sometimes manipulative and clearly taking advantage of her, it was not as exploitative and as moral culpable as what then occurred. In my view as the sentencing judge there was a really significant change in the circumstances of this matter that added to the moral culpability of the offender and his subsequent exploitation of it, and that was after the police involvement on 16 December 2019.” ^[21]

21. ROS at [10].

96. The judge recounted the conversation the police had with the respondent on 16 December 2019. The judge noted that the police told the respondent the significance of the victim being 14; that he would be charged if he continued to have sexual intercourse with her; and that an ADVO had been put in place. His Honour said:

“…this should have been more than just a wake-up call to him that this relationship could not continue. That if it did that he was now really on notice of the illegal aspect to it… That he was happy to lie about it and completely then ignore the warnings given to him is significant. It was not just that aspect though that ends up, in my view, really increasing the seriousness of his behaviour. It seemed to then trigger in him a far more exploitative aspect of the relationship moving forward.” ^[22]

22. ROS at [11].

97. The judge found that count 5 was a “real escalation”. He said that not only were the Form 1 matters serious in themselves, but the moral culpability of the particular act was much more serious than the other counts. His Honour said the indicative sentence for count 5 had to be much higher than the previous matters.

98. As to count 6, the judge noted that the respondent’s exploitation was not just intellectual but also physical. The respondent’s moral culpability was growing in seriousness which needed to be reflected in the indicative sentence.

99. As to count 7, the judge observed this was a continuation of the respondent’s perversion and was a really serious example of a s 66C(4) offence.

100. When referring to the offence of common assault on the Form 1, the judge found this was a serious example of that offence.

101. As to count 8, the judge mentioned that the respondent was not to be sentenced on the basis of exploiting the victim to have sex with Peter. His Honour found that count 8 was a serious example of a s 66C(4) offence, particularly with a Form 1 attached to it. His Honour observed that the offence was further evidence of the relationship, particularly by this stage, being more about the respondent’s sexual perversions and interests rather than any care or love for her.

102. The judge found that the respondent took advantage of the victim and “led her down a path of more than just sexual misbehaviour, but significantly impacted her life and he took away some of the most important years of her life” [23] .

     23. ROS at [24].

103. His Honour referred to the VIS and found that the respondent’s offending had significantly impacted the victim and the substantial harm done to her should be taken into account.

104. The judge found that the respondent’s criminal history denied him leniency, but it was not one that aggravated the sentence.

105. His Honour noted that “[the respondent] was on conditional liberty at the time of committing these matters, and in that respect although it does not aggravate the objective seriousness it aggravates the sentence overall”. ^[24]

     24. ROS at [26].

106. His Honour stated that “one of the biggest aspects that has to be acknowledged straightaway in this sentencing exercise is he has been in custody for a long time, not totally related to this matter…”. ^[25] His Honour noted that the respondent had been in custody since 30 January 2021 whilst only arrested for the present offences on 9 April 2021. His Honour found that the appropriate starting date of the sentence was 9 April 2021.

     25. ROS at [26].

107. The judge found that the respondent had a degree, but not necessarily a high level, of remorse and insight. His Honour said there were limits to what the respondent accepted about his behaviour and the impact upon the victim and the community. His Honour found that the respondent had little insight into his own sexual selfishness.

108. The judge accepted that the respondent’s time in custody had a salutary effect upon him.

109. When referring to Mr Sheehan’s report, the judge noted that the respondent’s substance abuse was a significant issue but acknowledged that self-induced intoxication did not mitigate his offending but explained the context of his behaviour.

110. The judge referred to the respondent’s emotional immaturity but did not think that any aspect of that significantly reduced his moral culpability.

111. The judge found that the respondent’s prospects of rehabilitation were guarded. His Honour had earlier stated having regard to the respondent’s Static-99R score there was little doubt that he was potentially at risk of committing further offences of this nature. That was not to say that there were no prospects of rehabilitation and his positive progress in custody was not something to be dismissed.

112. When dealing with the respondent’s counsel’s submissions on moral culpability and the weight to be given to general deterrence, the judge did not accept that the respondent’s moral culpability or the importance of general deterrence was “truly” reduced. His Honour found that the respondent’s moral culpability remained significant but accepted that there was “perhaps some reduction for his emotional immaturity”. ^[26] However, his Honour stated that although he had not accepted the respondent’s counsel’s submissions on moral culpability, these subjective factors were “highly relevant” to the overall consideration of sentence. ^[27]

     26. ROS at [34].

     27. ROS at [33].

113. The judge said that general deterrence was not to be reduced by any meaningful extent by the subjective circumstances of this matter and general deterrence was significant.

114. The judge agreed with the respondent’s counsel’s submission that specific deterrence could be met by the imposition of a fulltime custodial sentence and nothing more was required in that regard.

115. The judge also agreed that there was cause for optimism, including the respondent’s family support; his abstinence from drugs and alcohol whilst in custody for over two years; his intention to remain abstinent; there being no institutional charges since 30 January 2021; and no diagnosis of any paedophilic disorder or any paraphilia.

116. The judge accepted the submission that the respondent’s conditions in custody were onerous compared with the general prison population so as to operate as a mitigation on sentence.

117. The judge found special circumstances, particularly as to the respondent’s need for supervised rehabilitation.

118. [redacted]. His Honour acknowledged in structuring the sentence that the respondent was still a relatively young person, that this was his first truly lengthy gaol sentence and said that “although general deterrence is crucial in this matter, that rehabilitation still has to be structured in the final result to reflect his age and emotional immaturity”. ^[28] [redacted].

     28. ROS at [37].

119. His Honour had earlier said:

“This is a fairly unique case in many ways and difficult to determine the appropriate sentence, in particular because of the aspect of totality. The Crown submitted, and I believe correctly, that there, in this matter, has to be a significant degree of accumulation between these offences. These were different acts at different times and with different states of knowledge, in particular because of the actions of the police and ADVO but also the increased seriousness in his behaviour and the increased exploitation of his behaviour. In that respect, totality looms large in this sentencing exercise and is difficult to truly work out the final result. Of course the maximum penalty (and where relevant – the standard non parole) remain important guideposts.” ^[29]

29. ROS at [36].

120. When referring to the indicative sentences for those offences which had a standard non-parole period, his Honour said that in indicating a non-parole period, he was “simply going to choose a nominal non-parole period of 50% of the sentence”. His Honour went on to say:

“That’s not done to try and indicate what I believe the overall special circumstance should be (that will be considered on the aggregate sentence), it is just a technicality on sentence that you have to articulate a non-parole period on [an] indicative sentence.” ^[30] (emphasis added)

30. ROS at [36].

121. In specifying the indicative sentences for each count which are set out in the table at [6] above, his Honour’s remarks included that count 3 was “roughly around the same seriousness as count 1”. ^[31]

     31. ROS at [39].

122. As to count 4, his Honour said that this was a matter where the respondent’s exploitation, manipulation and lack of care for the victim had started to increase.

123. As to count 5, his Honour observed that this was when things really started to change and the sentence needed to be increased significantly. His Honour said that count 5, taking into account the Form 1 matters, reflects “a greater higher [degree] of moral culpability and seriousness of offending for this kind of behaviour”. ^[32]

     32. ROS at [39].

124. When dealing with count 6, his Honour said this was of a higher seriousness than the earlier matters.

125. Count 7, the judge said, was the most serious of the matters involved. Count 8 was the final act. His Honour said he was careful not to aggravate it because of the other party involved but the matter still had significant moral culpability.

126. The judge then imposed the aggregate sentence at [5] above.

Crown appeals

127. The principles relating to Crown appeals pursuant to s 5D of the Criminal Appeal Act were summarised by Hoeben CJ at CL in R v Barker [2016] NSWCCA 193 as follows:

“[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a “limiting purpose” for such appeals and, by contrast with the Court’s jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is ‘plainly unjust’ by reason of its manifest inadequacy) for the mere ‘correction of error in the individual sentencing proceedings’ Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8.

[53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is “plainly unjust”) the Crown must:

(i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);

(ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);

(ii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed). …

[55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is ‘plainly unjust’ and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R.”

Submissions on appeal

The Director’s submissions

128. The Director submitted that the aggregate sentence inadequately reflected the respondent’s criminality which indicated that latent error was sustained in the sentencing process leading to an unreasonable or plainly unjust result.

129. The Director did not plead patent error but pointed to seven aspects of the judge’s sentencing remarks which were said to contribute to an unjust aggregate sentence.

130. The first aspect was submitted to be the indicative sentences which the Director argued were themselves inadequate having regard to the objective seriousness of the offending in each count and the respondent’s personal circumstances. The Director referred to a significant disconnect between the findings of objective seriousness and the indicative sentences specified by the judge. The Director contended that this disconnect illuminated how the judge came to impose a manifestly inadequate sentence.

131. The second aspect was submitted to be error in his Honour’s application of s 54B of the CSP Act. The Director pointed to the judge’s arbitrary nomination of non-parole periods of 50% of the head sentences for the indicative sentences for the s 66C(4) offences.

132. The third aspect was submitted to be the judge’s failure to refer to s 25AA(3) of the CSP Act. The Director contended it was to be inferred that the judge failed to have regard to the trauma of sexual abuse on children as understood at the time of the offence.

133. The fourth aspect was submitted to be the judge’s failure to take into account or give adequate weight to counts 5 to 8 being committed in blatant contravention of an ADVO to protect the victim which was an aggravating factor.

134. The fifth aspect was submitted to be the judge’s statement that “nothing more was required” for specific deterrence. The Director argued that specific deterrence warranted substantial weight as the respondent had a prior criminal record; had manifested a serious continuing attitude of disobedience and presented a “well above average risk” of re-offending.

135. The sixth aspect was the Director’s submission that recent appellate cases fortified the manifest inadequacy argument. However, the Director acknowledged the limitations in invoking comparative sentences.

136. The seventh aspect was the Director’s submission that the offending involved high moral culpability. The Director pointed to the respondent’s extensive manipulation and exploitation of the victim which included the provision of alcohol and illicit drugs, deceit, violence in some counts, the overbearing of the victim’s will, and the introduction of third parties to sexual interactions.

137. In further submissions, the Director referred to the judge’s failure to mention the Form 1 offence when specifying the indicative sentence for count 4. Another matter was the judge’s failure to make a finding that the offending in count 4 (and the Form 1) was aggravated as the offence was committed in the victim’s home and s 21A(2)(eb) of the CSP Act applied.

The respondent’s submissions

138. The respondent pointed out that the aggregate sentence was founded on indicative sentences which had been discounted by 25%. The respondent contended that none of the indicative sentences were manifestly lenient. Furthermore, it was not enough to demonstrate that one or more of the indicative sentences were inadequate. The respondent’s submission was that the Director had failed to establish the manifest inadequacy of the aggregate sentence.

139. The respondent referred to the totality principle which required the court to ensure the aggregate sentence is a “just and appropriate measure of the total criminality involved”. ^[33]

     33. Postiglione v the Queen (1977) 189 CLR 295; [1997] HCA 26 at [307]-[308].

140. This Court was reminded of two matters that underpin the principle of totality. The first was that the severity of a sentence is not simply the product of a linear relationship and the second was that an extremely long sentence may be “crushing”. ^[34]

     34. R v M.A.K, R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]-[18].

141. The respondent pointed out that the totality principle involved a discretionary judgment. Reference was made to the judge’s sentencing remarks that in this case “… totality looms large in this sentencing exercise and is difficult to truly work out the final result”. ^[35] The respondent contended this was an implied reference to the difficulty of balancing the conflicting considerations that underpin the totality principle. The respondent argued there was no single correct way of balancing them in this case.

     35. ROS at [36].

142. The respondent contended that the length of the sentence and non-parole period was to be assessed in circumstances where the judge found the respondent’s time in custody was more onerous compared with those in the general prison population.

143. It was the respondent’s contention that it was legitimate for the sentence to reflect important features of the respondent’s subjective background: his age at the time of the offending; his emotional immaturity; his exposure as a child to his parents’ alcoholism and older brother’s criminality; his ADHD; and his addiction to alcohol and drugs at a young age. Although the judge rejected most of defence counsel’s submissions about these factors reducing moral culpability, his Honour found that they were “still highly relevant to the overall consideration of sentence”. The respondent argued that the judge had given “full weight” to those matters as “part of the process of instinctive synthesis”. The respondent submitted that the mere fact that this Court may have given less weight to the respondent’s subjective case and more weight to other factors did not establish the ground of appeal.

144. As to the Director’s complaint about specific deterrence, the respondent referred to the judge’s conclusion that his continuous custody for more than three years had had a salutary effect upon the respondent. His Honour’s conclusion was that a sentence consisting of a non-parole period of three years was an adequate deterrent to the respondent, was neither controversial, nor did it invert the sentencing process.

145. The respondent argued that this Court should not conclude there was a “disconnect” between the findings of objective seriousness and indicative sentences. It was submitted that the relative seriousness of each of the respondent’s offences (as compared to the respondent’s other offences) broadly corresponded with the length of each indicative sentence. Furthermore, the respondent argued that inferring error by considering the length of the indicative term as a proportion of the standard non-parole period or maximum penalty was a “hazardous undertaking”. ^[36] It was necessary to be mindful that those sentencing guideposts only incorporate part of the sentencing task.

     36. Respondent’s Written Submissions at [36].

146. As to the Director’s criticism of the judge nominating some “token” indicative non-parole periods, the respondent observed that the Director had not alleged a specific House v King error that had the capacity to affect the aggregate sentence. The respondent argued it was not productive to dwell on his Honour’s approach. The respondent pointed out that the aggregate non-parole period is 67% of the aggregate sentence which was not unusual given the finding of special circumstances.

147. When referring to the Director’s complaint that the judge failed to make a finding of an aggravating circumstance for count 4, the respondent submitted that the judge was conscious that the offence occurred in the victim’s home and did not overlook that circumstance. It was further submitted that the offence was not “actually” aggravated as count 4 occurred after the victim “decided to sneak” the respondent into the garage of her residence.

138. As to the Director’s complaint that the judge failed to have regard to s 25AA(3) of the CSP Act, the respondent submitted that the judge was alive to the reality of the victim’s past and future trauma. The respondent contended that the judge did not unduly confine his consideration of the VIS.

139. When referring to the Director’s contention that recent appellate cases fortified the manifest inadequacy argument, the respondent pointed out that the Crown at sentence did not rely on comparative cases. Furthermore, the cases referred to by defence counsel showed a very broad range of results, including non-custodial dispositions. The respondent submitted that the cases relied upon on appeal are of limited utility and neither substantially contributed to nor established manifest inadequacy.

Consideration

150. In order to succeed on a ground of appeal asserting that an aggregate sentence is manifestly inadequate, the Director must establish that the sentence was below the range of sentences that could be justly imposed for the respondent’s offending consistent with sentencing standards. As the High Court said in Bugmy v The Queen “sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence”. ^[37] Appellate intervention is not justified simply because this Court may have exercised its sentencing discretion differently. ^[38]

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

     38. Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221.

151. Where it is submitted that an aggregate sentence is manifestly excessive, there are a number of established principles which may be shortly stated. The indicative sentences are not themselves amenable to appeal, although they “may be a guide” to whether error can be established. ^[39] An examination of the indicative sentences can also be relevant to the question of whether the totality principle has been properly applied. ^[40] However, the only operative sentence is the aggregate sentence. ^[41] An indicative sentence can be excessive without the aggregate sentence necessarily being so. ^[42] The fundamental question is whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality evident in the offences. ^[43]

     39. JM v R (2014) 246 A Crim R 528 at [40]; [2014] NSWCCA 297; Lee v R [2020] NSWCCA 244 at [33].

     40. Noonan v R [2021] NSWCCA 35; Kliendienst v R [2020] NSWCCA 98.

     41. Vaughan v R [2020] NSWCCA 3 at [90].

     42. JM v R [2014] NSWCCA 297; (2014) A Crim R 528 at [39].

     43. McTague v R [2020] NSWCCA 83 at [47].

152. With appropriate modification, these principles apply to manifest inadequacy appeals.

153. Another important principle is that the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offences. ^[44]

     44. R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534 at [63].

154. The critical question is “whether the aggregate sentence reflects the totality of the criminality involved” in the respondent’s offending. ^[45] [redacted].

     45. JM v R [2014] NSWCCA 297; (2014) A Crim R 528 at [14]; Aryal v R [2021] NSWCCA 2 at [50].

155. I should state at the outset that neither the cases which the Director referred to this Court nor the cases to which the judge was referred to by the respondent’s counsel provide a pattern of sentences which are useful in this appeal. Notwithstanding the absence of comparative sentencing decisions, manifest inadequacy may be shown by consideration of all matters that are relevant to fixing the aggregate sentence. ^[46]

     46. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60].

156. The respondent, over a period of about seven months, made use of the 14 year old victim to satisfy his own needs by plying her with alcohol and introducing her to prohibited drugs. The drug use escalated from cannabis to methamphetamine and MDMA. From the commencement of his offending, he was on conditional liberty being on a CRO of 12 months commencing on 20 November 2018. At the time he committed the 3^rd and 4^th counts, he was subject to three CCOs for 12 months commencing on 16 October 2019. A condition of those orders was that he abstain from alcohol for 12 months. When he committed counts 5, 6, 7 and 8 he remained subject to these three CCO’s and a further CCO imposed for shoplifting on 13 November 2019.

157. As the judge found, the respondent’s moral culpability for his offending escalated significantly after he met with the police on 16 December 2019 and “increased the seriousness of his behaviour”. ^[47] The judge noted that “it seemed to then trigger in him a far more exploitative aspect of the relationship moving forward”. ^[48] The respondent’s conduct towards the victim involved an escalation of the physical elements of sexual assault; the use of violence; emotional manipulation; and the degradation of the victim.

     47. ROS at [11].

     48. ROS at [11].

158. Count 5 involved the respondent pressuring the victim to agree to penile-anal intercourse which caused her pain and bleeding from the anus and vagina.

159. Counts 6 and 7 involved aggressive and degrading conduct by the respondent. The judge correctly regarded the punching of the victim (the Form 1 offence) as a serious example of common assault. The respondent was physically rough in the sexual intercourse and the victim felt pain.

160. The respondent’s degradation and exploitation of the victim for his own sexual desires is demonstrated by count 7 when he inserted the nozzle of a bottle into the victim’s vaginal canal causing her pain and bleeding.

161. Count 8 involved the continuing manipulation and exploitation of the victim who he injected with methamphetamine and had her engage in a “threesome” with the person known as Peter.

162. The judge did not place the objective seriousness of counts 5, 6, 7 and 8 on a scale between “low range” to “high range”, even though these counts involved a standard non-parole period. There has been some discussion in this Court as to whether a sentencing judge is obliged to determine the objective seriousness of an offence in relation to the middle range of seriousness, for offences involving a standard non-parole period. ^[49] The Director did not complain about the judge’s findings of objective seriousness and for the purpose of resolving the appeal, it is unnecessary to engage in this debate.

     49. See for example Su v R [2023] NSWCCA 207 at [69]; Trimarchi v R [2019] NSWCCA 189 at [45]; DH v R [2022] NSWCCA 200 at [60].

163. The judge said that count 5 “was a real escalation” ^[50] and “when things… really started to change and the kind of sentences that have to be indicated needed to be increased significantly to reflect that”. ^[51]

     50. ROS at [17].

     51. ROS at [39].

164. The judge said that count 6 “again was of a higher seriousness than the earlier matters and similar in serious [sic] to many of the matters that I was then dealing with...”. ^[52]

     52. ROS at [39].

165. The judge said that count 7 “was a really serious example of a [s] 66C(4) [offence]” ^[53] . His Honour also said that count 7 “was the most serious of the matters involved, perhaps not greatly...”. ^[54]

     53. ROS at [20].

     54. ROS at [40].

166. As to count 8, the judge said it was “a serious example of a [s] 66C(4) offence again, particularly with a Form 1 attached to it…”. ^[55]

     55. ROS at [22].

167. Attached to count 5 on a Form 1 were two charges of sexual intercourse with a child in circumstances of aggravation contrary to s 66C(4) of the Crimes Act. The Form 1 offences were serious involving penile-vaginal intercourse without a condom, and fellatio. The indicative sentence was 3 years with a non-parole period of 18 months. This reflected an undiscounted sentence of 4 years with a non-parole period of 2 years.

168. Count 6 did not have a Form 1 offence attached to it. The indicative sentence was 2 years and 9 months with a non-parole period of 17 months. This reflected an undiscounted sentence of 3 years and 8 months with a non-parole period of 1 year, 10 months and 3 weeks (approximately).

169. Attached to count 7 was the Form 1 offence of common assault which was a serious example of that offence. The indicative sentence was 3 years and 3 months with a non-parole period of 20 months. This reflected an undiscounted sentence of 4 years and 4 months with a non-parole period of 2 years, 2 months and 3 weeks (approximately).

170. Attached to count 8 was a charge of sexual intercourse with a child in circumstances of aggravation contrary to s 66C(4) of the Crimes Act. The Form 1 offence involved the victim performing fellatio on the respondent when Peter was present, to attempt to get the respondent aroused. The indicative sentence was 2 years and 6 months with a non-parole period of 15 months. This reflected an undiscounted sentence of 3 years and 4 months with a non-parole period of 20 months.

171. All the Form 1 offences were serious and demonstrated the additional need for personal deterrence and retribution in considering the indicative sentence for the substantive offence.

172. Counts 5 to 8 were all offences contrary to s 66C(4), with a maximum penalty of 12 years’ imprisonment with a standard non-parole period of 5 years.

173. The favourable findings that the judge made about the respondent’s subjective case included a degree of remorse and insight (but not necessarily high); some reduction for his emotional immaturity; the salutary effect that his time in custody had on him; a cause for optimism arising from his family support; his abstinence from drugs and alcohol whilst in custody; his relative youth and onerous conditions in custody. Notwithstanding these findings, the respondent’s subjective case could not be regarded as having much strength given the judge’s findings about the respondent’s moral culpability; his little insight in his own sexual selfishness; his limited remorse; his guarded prospects of rehabilitation; and his criminal history.

174. The indicative sentences for counts 5, 6, 7 and 8 do not reflect the criminality involved in these offences. Indeed, it is difficult to see how the Form 1 offences are reflected in any way in the indicative sentences for counts 5, 7 and 8.

175. One of the matters raised in this Court was whether being placed on an AVO or an ADVO amounted to conditional liberty within s 21A(2)(j) of the CSP Act. The Director submitted it was unclear whether the judge treated the ADVO as an aggravating factor under s 21A(2)(j). The police obtained an ADVO for the protection of the victim on 16 December 2019. A final ADVO was made on 5 February 2020 pursuant to s 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

176. The prohibitions imposed on the respondent’s behaviour included not assaulting or threatening the victim and not contacting her in any way. The respondent’s liberty was subject to all of the conditions of the ADVO. In my view, an offender who is subject to an AVO or ADVO is on conditional liberty and the commission of an offence during the period of the order is an aggravating factor under s 21A(2)(j). Support for this view is found in the observations of Fullerton J (with whom McClellan CJ at CL and Schmidt J agreed) in Sivell v R ^[56] at [29]:

“For my part, I can see no justification in treating a breach of a bond, suspended sentence or breach of parole for the purposes of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act any differently from a breach of an order under the Child Protection (Offenders Prohibition Orders) Act, or for that matter, a breach of an apprehended violence order under the Crimes (Domestic and Personal Violence) Act. While in the former category conditional liberty has clearly been granted to an offender “in relation to an offence or alleged offence”, thereby attracting the operation of s 21A(2)(j) by that designation, in the latter category the conditions on the person’s liberty have been imposed with the object of protecting against the risk of offences of a particular kind being committed where the potential victim is in position of vulnerability by age, in the case of the child protection legislation, or vulnerable by their social or domestic circumstances in the case of women or others at risk of personal violence.”(emphasis added)

56. [2009] NSWCCA 286; see also Cherry v R [2017] NSWCCA 150 at [71].

177. In any event, a breach of an ADVO would be an aggravating factor under the general law and did not require the application of s 21A(2)(j). It is clear that the judge regarded the offending whilst subject to the ADVO as an aggravating factor. His Honour correctly pointed out that the contravention of the ADVO did not “aggravate the objective seriousness it aggravates the sentence overall”. ^[57] As Hoeben CJ at CL observed in Field v R: ^[58]

“The fact of the offending occurring while a person is at conditional liberty is not capable of elevating the criminality of the offence. On the contrary, it has an aggravating effect on the imposition of sentence. It aggravates the sentence by affecting considerations of punishment, deterrence and protection of the community (Regina v FD; Regina v JD [2006] NSWCCA 31; 160 A Crim R 392 at [152]; R v Richards (1981) 2 NSWLR 464 at 465).”

57. ROS at [26].

58. [2020] NSWCCA 105 at [85].

178. It is not to be overlooked that the respondent was sentenced in the Local Court on 1 April 2020 for contravention of the ADVO to two concurrent terms of 12 months’ imprisonment with non-parole periods of 2 months. However, it is not “double-counting” to take into account that the respondent’s offending in counts 5, 6, 7 and 8 was seriously aggravated by his blatant disregard of the ADVO. Furthermore, his offending was seriously aggravated by the commission of the offences whilst he was subject to four CCOs. In my view, the indicative sentences do not adequately reflect the considerations of punishment, deterrence and protection of the community which arose from the offences being committed whilst he was subject to conditional liberty. The sentence for the ADVO was properly considered by the judge in applying the principle of totality.

179. Another manifestly inadequate sentence is count 4 which involved the respondent emotionally manipulating the victim to reluctantly agree to have penile-anal intercourse in the garage of her home. The intercourse caused her pain. The judge found that the objective seriousness of this offence was not dissimilar in seriousness to counts 1 and 2 which were below mid-range.

180. Attached to count 4 was a Form 1 offence of sexual intercourse with a child contrary to s 66C(3) of the Crimes Act. The indicative sentence was 18 months. This reflected an undiscounted sentence of 2 years.

181. Count 4 was an offence carrying a maximum penalty of 10 years imprisonment. When indicating the sentence for count 4, his Honour did not refer to the Form 1 offence. His Honour did refer to the Form 1 offences attached to the other particular counts when indicating the sentence for those counts.

182. His Honour’s sentencing remarks were not delivered immediately following oral argument but were reserved for some months. The degree of latitude afforded to sentencing remarks delivered ex tempore is not available and it may be that the judge inadvertently overlooked the Form 1 offence when specifying the indicative sentence for count 4.

183. An aggravating factor under s 21A(2)(j) was that the respondent was subject to three CCOs when he committed the offence. In my view, neither this serious aggravating factor nor the serious Form 1 offence are reflected in the indicative sentence.

184. The Crown had submitted that the offence was aggravated as it was committed in the victim’s home. However, the judge did not refer to this submission in his sentencing remarks. It is well established that the fact that an offence occurred in a home will not in all cases be an aggravating factor. ^[59] In the present case, the prior sexual offending had taken place in public areas including a stairwell and a service station bathroom which made the victim vulnerable to the attention of other members of the public. That vulnerability was reduced in the garage and I do not regard that the aggravating factor under s 21A(2)(eb) has been established.

     59. Johnson v R [2016] NSWCCA 286 at [52].

185. It is convenient to refer to further submissions made by the Director. The Director submitted that one of the matters that indicated manifest inadequacy was that the judge did not mention s 25AA(3) of the CSP Act in his sentencing remarks, even though the Crown had raised the section in written submissions. Section 25AA(3) provides:

25AA Sentencing for child sexual offences

(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).

186. The Director complained that even though the judge referred in some detail to the VIS in his sentencing remarks, no reference was made to s 25AA(3). The Director submitted that the VIS and s 25AA(3) are not synonymous. The VIS was said to describe the impacts of the offending on the victim at the time she wrote the statement whereas s 25AA(3) mandates that attention be paid to the trauma specific to sexual abuse on children.

187. The Director argued that the judge was required by s 25AA(3) to engage with the provision and with the common experience of the courts in understanding the trauma of sexual abuse on children at the time of sentencing. The Director submitted that “[a]t the very least, this required that the sentencing judge proceed on the basis that there was a substantial risk of emotional harm to the victim arising in the future”. The Director cited what was said in TH at [61] by Beech-Jones CJ at CL:

“It is neither necessary nor appropriate to undertake an exegesis of this provision to resolve the appeal. It suffices to state that in a case where the form of trauma may not be self-evident from the facts of the offending or material referable to the specific case, it will be incumbent on the Crown to identify the trauma the sentencing judge is asked to consider and, if relied on, the “recent psychological research” or “common experience of the courts” sought to be invoked. One example of the latter is the observation of Spigelman CJ in DBW v R [2007] NSWCCA 236 at [40] to the effect that, where there is no positive evidence that a young victim of a sexual offence has suffered psychological harm by the time of sentencing, the Court can, and perhaps should, proceed on the basis that there is nevertheless a “substantial risk of emotional harm” arising in the future (see also Grange v R [2023] NSWCCA 6 at [11]).”

188. It is unfortunate that the judge did not refer in his sentencing remarks to s 25AA(3) when the section had been raised in submissions by the Crown, however, that does not mean that the judge did not have regard to the substantial risk of emotional harm arising to the victim in the future. The VIS was not confined to the impact of the offending at the time the victim wrote the statement. The VIS provided a comprehensive statement of the trauma that the victim had suffered, was suffering at the time of the statement and would suffer in the future. In the last paragraph of the VIS, the victim stated:

“The things that happened to me continue to affect every aspect of my life and always will.

…

I will always have to live with what he did to me and what he put me through…” ^[60]

60. VIS at [7].

189. This was not a case of the victim being a young child and there being no positive evidence of psychological harm.

190. The judge carefully considered the VIS during his sentencing remarks. When discussing the VIS, his Honour’s findings included the substantial impact that the respondent’s sexual offending had upon her and recognised her continuing trauma. His Honour expressed the hope that the victim could “hopefully get the support and counselling to continue to move forward in her life”. ^[61]

     61. ROS at [25].

189. I am not persuaded that the Director’s contention has been established.

190. The Director was critical of what was said to be an arbitrary approach by the judge to the nomination of the non-parole periods for the s 66C(4) offences. In the passage quoted at [120] above, his Honour considered it was “just a technicality” for standard non-parole period offences “to articulate” a non-parole period for an indicative sentence. His Honour chose nominal non-parole periods of 50%.

191. Section 54B(4) of the CSP Act obliges a court when determining an aggregate sentence of imprisonment for standard non-parole period offences “to indicate and make a written record of … the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence”.

192. Contrary to what was said by the judge, the setting of an indicative non-parole period for a standard non-parole period offence is not a mere “technicality”. It is a statutory obligation.

193. A properly assessed indicative sentence both in the head sentence and non-parole period assists in the application of the totality principle and allows “victims of crime and the public at large to understand the level of seriousness which a court has regarded an individual offence”. [62] Furthermore, it assists “when questions of parity of sentencing as between co-offenders arise”. ^[63]

     62. JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39] citing R v Nykolyn [2012] NSWCCA 219 at [58].

     63. JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39].

194. His Honour was obliged to properly consider the setting of the non-parole periods for counts 1, 2, 5, 6, 7 and 8. Unfortunately his Honour did not do so. The non-parole periods of 50% are manifestly inadequate.

195. I am also of the opinion that the indicative sentence for count 3 is manifestly inadequate. The offence involved penile-vaginal intercourse. The judge found that count 3 was “roughly the same seriousness as count 1”. Attached to count 3 was a Form 1 offence of sexual intercourse with a child contrary to s 66C(3) of the Crimes Act. The indicative sentence was 15 months. This reflected an undiscounted sentence of 20 months.

196. His Honour did refer to the Form 1 offence when specifying the indicative sentence.

197. Similarly to count 4, an aggravating factor under s 21A(2)(j) was that the respondent was subject to three CCOs. The maximum penalty for count 3 was 10 years imprisonment. In my view, neither the serious aggravating factor nor the serious Form 1 offence are reflected in the indicative sentence.

198. Although I am of the view that the indicative head sentences for counts 1 and 2 are lenient, I am not persuaded that the indicative head sentences for these counts are manifestly inadequate. The manifest inadequacy of counts 3 to 8 point to the manifest inadequacy of the aggregate sentence.

199. It is plain that the judge gave earnest consideration to the principle of totality in determining the aggregate sentence. His Honour was mindful of the respondent’s relative youth, his need for rehabilitation, his first lengthy term of imprisonment and the time he had spent in custody for the sentences imposed in the Local Court.

200. One of the purposes of the totality principle is to avoid a “crushing sentence”. In R v M.A.K., R v M.S.K., ^[64] the Court stated at [17]:

“The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.”

64. [2006] NSWCCA 381; (2006) 167 A Crim R 159 (Spigelman CJ, Whealy and Howie JJ).

203. Whilst one of the purposes of the totality principle is to avoid a “crushing sentence” for multiple offences, a judge must not overlook the need to ensure that the aggregate sentence viewed in combination reflects the seriousness of an offender’s conduct as a whole. ^[65] In my respectful opinion, the judge overlooked this obligation.

     65. R v M.A.K., R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159.

204. It is unclear what his Honour intended when he accepted the submission that the court “would be satisfied that specific deterrence is met by the imposition of a full-time custodial sentence and nothing more is required in this regard”. ^[66] It may be that his Honour considered that the respondent’s time already spent in custody was sufficient. In my view, the respondent’s blatant disregard for the warning given to him by the police and the ADVO; his egregious non-compliance with the sentences imposed upon him by the Local Court; his risk of sexual re-offending; and the Form 1 offences all called for a strong measure of specific deterrence. A strong measure of general deterrence was also required to deter older men from sexually exploiting teenage girls.

     66. Defendant’s Written Submissions Filed 16 November 2023, (‘DWS’) at [5].

205. As I stated at [154] above, the aggregate sentence falls far short of reflecting the totality of the criminality of the respondent’s offending. I would uphold the complaint of manifest inadequacy.

The residual discretion

206. The question remains whether this Court should intervene and re-sentence the respondent. There is a residual discretion to decline to intervene even though the sentence is manifestly inadequate. The Director is obliged to satisfy the Court that the residual discretion should not be exercised. ^[67]  

     67. CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [69].

207. In Green v The Queen; Quinn v The Queen,^[68] the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to “lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. Their Honours described the primary purpose of laying down principles as a "limiting purpose" and said at [36]:

“It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.”

68. (2011) 244 CLR 462; [2011] HCA 49.

208. Their Honours observed that other circumstances may combine to produce injustice if a Crown appeal is allowed. Their Honours said at [43]:

“They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.”

209. An affidavit sworn by the respondent on 18 June 2024 was admitted as being relevant to the residual discretion and re-sentence if that arose.

The respondent’s affidavit

210. The respondent stated that he had been in a correctional centre [redacted].

211. [redacted].

212. The respondent stated that he was focussed on moving forward with his life and looking forward to finishing his sentence so he could move [redacted]. He stated that he was planning to complete a trade qualification upon his release. [redacted].

213. He had been able to reflect during his time in custody and appreciated the effect that drugs and alcohol had on his life. He was thankful that he had abstained from both drugs and alcohol for so long in custody that he felt he was now able to succeed with rehabilitation. [redacted].

Submissions

214. The Director submitted that there had been no delay in the institution of the appeal. The respondent was sentenced on 16 February 2024 and the Notice of Appeal was filed on 15 March 2024.

215. The Director contended that the need for denunciation, punishment, protection of the community and recognition of the harm done to the community would be undermined by allowing a manifestly inadequate sentence to stand and to do so may undermine public confidence in the administration of justice. Stern sentences are required for offences involving the sexual abuse of children to protect the most vulnerable members of the community.

216. The Director submitted that the residual discretion should not be exercised.

217. The respondent submitted that if the Director’s complaint of manifest inadequacy succeeds, the appeal should be dismissed.

218. The respondent contended that any manifest inadequacy in the sentence was not so marked as to amount to an affront to the administration of justice. Furthermore, the lack of delay in bringing the appeal was a neutral factor which did not contribute to the Director discharging her onus. A further submission was that this was not a case where specific deterrence demanded this Court’s intervention.

219. The respondent submitted that an increase in the sentence would disrupt his path towards rehabilitation.

220. The respondent pointed to the judge’s finding that there was “some cause for optimism” about the respondent’s future, particularly given his father’s support. Reference was made to the respondent’s affidavit which showed that he has been productive in custody, has remained mindful of his long-standing drug and alcohol problems and remains keen to embrace the opportunity of living and working in a rural setting with a family member. An increased sentence risks “inducing a feeling of hopelessness” that could undermine the prospect of the respondent achieving that goal.

221. The respondent submitted that this was a case where upholding the appeal and outlining the relevant principles provided adequate guidance to the District Court.

222. Another submission was that three findings of the judge should be reconsidered at the residual discretion stage and, if it arises, on re-sentence:

1. The respondent referred to the VIS and to the joint position of the parties that this did not establish the aggravating factor in s 21A(2)(g) of the CSP Act. Whilst the respondent accepted that this Court is not bound by the stance of the parties, the respondent submitted that the Crown’s concession at first instance was reasonable and should be accepted.

2. [redacted].

3. The respondent referred to the identification by his counsel before the judge of various factors that combined to reduce his moral culpability and the judge’s general rejection of those submissions.

The matters raised in [222] above

223. The three matters which the respondent has asked this Court to reconsider would have been more appropriately raised in a cross-appeal as assertions of specific error by the judge.

224. The first matter in [222(1)] appears to suggest that the judge gave excessive weight to the VIS. There is no merit in this complaint as the judge was cautious in his approach to the VIS and referred to EG v R ^[69] and RL v R. ^[70] His Honour did not find that the harm to the victim was an aggravating factor under s 21A(2)(g) of the CSP Act. There is no merit in this complaint.

     69. [2015] NSWCCA 21.

     70. [2015] NSWCCA 106.

225. [redacted].

226. The third matter raised in [222(3)] above appears to suggest that the judge did not give sufficient weight to the various factors that were submitted by the respondent’s counsel to reduce his moral culpability. The judge paid close attention to the assessment of moral culpability and rejected some of the submissions made on the respondent’s behalf. I do not detect error in his Honour’s approach to this issue.

Consideration

227. The Director has not contributed to the manifest inadequacy of the sentence nor has the Director delayed the appeal.

228. None of the matters raised by the respondent at [222] above lead me to conclude that this Court should decline to intervene.

229. I accept that the respondent has taken positive steps towards his rehabilitation. It appears from his affidavit that he has completed courses and has abstained from drugs and alcohol in custody. Nothing is said in his affidavit as to whether an extension of his time in custody will affect his classification or his ability to access other programs, particularly those directed to sexual offenders. Even accepting that an increased sentence may have an adverse impact on the respondent, the manifest inadequacy of the aggregate sentence is an affront to the administration of justice. The necessity to provide guidance to judges when dealing with offending involving the sexual abuse of teenage girls and the importance of ensuring public confidence in the justice system overwhelmingly points to not allowing such a manifestly inadequate sentence to stand.

230. In my opinion, the Director has demonstrated that the residual discretion to decline to intervene should not be exercised.

Re-sentence

231. In exercising the sentencing discretion afresh, I will initially refer to the matters in [222] above which the respondent asks this Court to reconsider.

232. As to the matter raised in [222(1)] above, neither the Crown in the proceedings before the judge nor the Director in this Court submitted that the harm to the victim caused by the offending was an aggravating factor under s 21A(2)(g) of the CSP Act.

233. In assessing the harm to the victim, I have regard to the trauma to the victim under s 25AA of the CSP Act. The “profound and deleterious effects” of sexual offending upon young persons has been recognised by this Court for many years. ^[71] I also take into account the VIS which did not raise harm “that was more deleterious than could generally be expected from the circumstance of the offence”. ^[72] Dr Gordon’s report provided additional support for the harm experienced by the victim.

     71. R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [110].

     72. RP v R [2013] NSWCCA 192 at [28].

234. I find that the psychological harm suffered by the victim was both serious and long term.

235. [redacted].

236. [redacted].

237. [redacted].

238. [redacted].

239. [redacted].

240. As to the matters raised in [222(3)] above, I take into account in assessing the respondent’s moral culpability, the disadvantages he suffered in being exposed to a strong family disposition towards addictions and to his older brother’s negative role modelling. At the time he met the victim he was an alcoholic and regular drug user. The respondent’s disadvantaged background and emotional immaturity reduce to some extent his moral culpability for the offences committed prior to the police informing him of the ADVO. However, this does not mean that he bears no moral responsibility for these offences. He supplied the victim with alcohol and introduced her to drugs. He was clearly aware of her age, that she was affected by alcohol and drugs and his conduct was exploitative and manipulative. There is no doubt that his moral culpability significantly increased after his conversation with the police on 16 December 2019.

241. Neither the Director nor the respondent challenged the judge’s assessment of objective seriousness of any of the offences and I will not change any of the assessments.

242. I take into account the respondent’s age. I intend to adopt the judge’s favourable findings about the respondent’s subjective case summarised at [173] above which have not been challenged on appeal. Whilst his prospects of rehabilitation remain guarded, the positive steps taken by him in custody add to the degree of optimism expressed by the judge. Much will depend on his ability to refrain from drug and alcohol use upon release.

243. The judge’s finding that the respondent’s conditions in custody were more onerous so as to operate as a mitigation on sentence was not challenged and is to be accepted. [redacted]. It is clear from the respondent’s affidavit that his current custodial conditions are those experienced by the general prison population.

244. The maximum penalty and standard non-parole periods for the s 66C(4) offences and the maximum penalty for the s 66C(3) offences are legislative guideposts to be borne in mind when considering the appropriate penalty, having regard to the objective seriousness of the offence and the subjective circumstances of the respondent. ^[73] The standard non-parole period does not have determinative significance in sentencing the respondent, nor is it a “starting point” for the sentence. ^[74] I have referred to the relevant principles concerning matters on a Form 1 at [7] above.

     73. Muldrock v The Queen (2011) 244 CLR 120: [2011] HCA 38.

     74. Muldrock v The Queen (2011) 244 CLR 120: [2011] HCA 38 at [31].

245. I agree with the judge that the respondent’s criminal history denies him leniency but it is not an aggravating factor.

246. I adopt what I have said in these reasons about the offences being committed whilst the respondent was on conditional liberty. ^[75] This aggravating factor (s 21A(2)(j)) was also present when counts 1 and 2 were committed as he was subject to a CRO.

     75. See [175]-[178], [183] and [199].

247. In my view, for the reasons expressed at [204] above, there is a heightened need for specific and general deterrence in this case.

248. I find special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of the term of the sentence being his need for drug and alcohol supervision upon release. The judge’s ratio of 67% which his Honour applied to the aggregate sentence has been maintained by me in the aggregate sentence.

249. In assessing the indicative sentences, I have fixed an appropriate sentence for each offence. For the s 66C(4) offences, I have specified a non-parole period after a finding of special circumstances. It seems to me that the ratio in each of these offences should be the same as the aggregate sentence. The following table discloses the sentences that would have been imposed but for the aggregate sentence after the 25% discount has been applied: s 53A(2)(b) of the CSP Act.

Count	Indicative head sentence after 25% discount (round figures)	Non-parole period
1	1 year 2 months	9 months
2	1 year 6 months	1 year
3*	2 years	-
4*	2 years 6 months	-
5*	4 years	2 years 8 months
6	3 years 3 months	2 years 2 months
7*	4 years 3 months	2 years 10 months
8*	3 years	2 years

*Sentences for these counts include the matter/s on Form 1

250. Critical to the sentence is the principle of totality. I have considered questions of cumulation and concurrence and totality. I take into account the sentences imposed by the Local Court and the respondent’s continuous custody since 30 January 2021. The principle of totality requires that the aggregate sentence must be “just and appropriate” and the respondent must not be subjected to a crushing sentence. ^[76]

     76. Mill v The Queen [1988] HCA 70; (1988) 166 CLR 50; Postiglione v The Queen (1977) 189 CLR 295; [1977] HCA 26.

Proposed orders

251. Accordingly, I propose the following orders:

1. Director’s appeal allowed.

2. The aggregate sentence imposed in the District Court on 16 February 2024 is quashed.

3. In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment of 11 years consisting of a non-parole period of 7 years 4 months commencing on 9 April 2021 and expiring on 8 August 2028 with a balance of term of 3 years 8 months commencing on 9 August 2028 and expiring on 8 April 2032.

4. The earliest date the respondent will be eligible to be released to parole is 8 August 2028.

252. GARLING J: I agree with the orders proposed by Price AJA, and with his Honour’s reasons for the making of those orders.

**********

Endnotes

Amendments

16 September 2025 - Amendments in accordance with the non-publication orders made on 26 August 2025.

Decision last updated: 16 September 2025