DS v The King - [2025] NSWCCA 53

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DS v R [2025] NSWCCA 53
Hearing dates: 6 February 2025
Date of orders: 11 April 2025
Decision date: 11 April 2025
Before: Mitchelmore JA at [1]
Walton J at [83]
N Adams J at [84]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeals – appeal against sentence – whether error in not applying statutory numerical discount for guilty plea entered after trial commenced – error conceded – question of whether any lesser sentence warranted in law– question of whether applicant’s moral culpability should be reduced – approach to Bugmy considerations – approach on resentence – serious offending over many years – multiple child victims – leave granted – appeal against sentence dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 66D, 66C(2), s 61D(1) (repealed), 61E(1A) (repealed), 66DB(a), 66EA(1), 71 (repealed), 76 (repealed)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D, s 25F(8), s 101A
Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dungay v R [2020] NSWCCA 209
Giacometti v R [2023] NSWCCA 150
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lloyd v R [2022] NSWCCA 18
Lupton v R [2024] NSWCCA 29
Panetta v R [2016] NSWCCA 85
R v Doyle (2022) 108 NSWLR 1; [2022] NSWCCA 81
R v MJ [2023] NSWCCA 306
R v Todd [1982] 2 NSWLR 517
R v Tuncbilek [2004] NSWCCA 139
WP v R [2024] NSWCCA 77
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
RO v R [2019] NSWCCA 183

Category: Principal judgment
Parties: DS (Applicant)
Rex (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Watsons Solicitors & Barristers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/00208682
Publication restriction:
Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter that could identify the victims is prohibited.
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the victims’ names is prohibited.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

NA

Date of Decision:

23 November 2023

Before:

Judge Huggett

File Number(s):

2021/00208682

HEADNOTE

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

The applicant was sentenced in the District Court to an aggregate term of imprisonment of 22 years, with a non-parole period of 16 years and 6 months, for 14 sexual offences committed between 1975 and 2021 against five child victims, each of whom was related to him. Of the 14 charges for which the applicant was sentenced, 12 came before the District Court on an indictment, and the remaining two were committed to the District Court for sentence following a plea of guilty in the Local Court. In respect of the 12 offences on the indictment, the applicant entered guilty pleas after the trial commenced and one of the victims had given evidence. In proceedings on sentence, the Crown submitted (and the applicant’s counsel did not challenge) that a statutory numerical discount was not available under the Crimes (Sentencing Procedure) Act 1999 (NSW) in these circumstances. Accordingly, the sentencing judge did not apply any statutory numerical discount for the guilty pleas entered in relation to the counts on the indictment.

The applicant sought leave to appeal against the sentence imposed on three grounds:

(1) The sentencing judge erred in failing to provide a numerical discount for the guilty pleas entered to the 12 counts that came before the Court on an indictment.
(2) The sentencing judge erred in not being satisfied that there were factors personal to the applicant that were causally connected with, or which materially contributed to, the commission of the offences, or which reduced the applicant’s moral culpability.
(3) The aggregate sentence imposed was manifestly excessive.

The Crown accepted it was open to the Court to find that the sentencing judge had erred in the manner alleged by ground 1, and that the error had the capacity to influence the aggregate sentence that her Honour imposed.

The Court held (Mitchelmore JA, Walton J and N Adams J agreeing), granting leave to appeal and dismissing the appeal:

(1) The applicant was entitled to a sentencing discount in respect of the 12 counts on the indictment in accordance with s 25D(2)(c) of the Sentencing Procedure Act: at [59]. In light of this error it was necessary for the Court to resentence the applicant in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”): at [59]-[64].
R v Tuncbilek [2004] NSWCCA 139 at [33] (Simpson J) and WP v R [2024] NSWCCA 77 at [108]-[109] (Wilson J), applied.

(2) It was unnecessary to determine grounds 2 and 3 although the issue the subject of ground 2 was considered on resentence in light of the alleged error. It does not follow from the absence of a causal link between the profound deprivation that marked the applicant’s upbringing and the commission of the offences that his background had no effect on his moral culpability for the offences he committed, although the reduction in the present case was not significant: [67]-[71].
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), considered; R v MJ [2023] NSWCCA 306 at [3]-[5], Dungay v R [2020] NSWCCA 209 at [138]-[139] (N Adams J) applied.

(3) The function of the Court on resentence is to exercise an independent discretion. Weighing the objective seriousness of the offending and the applicant’s subjective case, and considering the extent of notional accumulation, no lesser sentence is warranted for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW) [65]-[81].
Kentwell, applied.

Per N Adams J:

(4) The notion that the error on ground 1 is such that the Court should impose a lesser sentence in recognition of the policy behind the numerical discount scheme misunderstands the Court’s discretion on resentence. It is highly likely that in exercising its independent sentencing discretion consistently with a proper application of the principles derived from Kentwell, this Court will arrive at a different sentence. Sometimes the new aggregate sentence will be lower, and sometimes it will be higher, even having regard to factors favourable to the applicant which were not taken into account by the sentencing judge, including a discount. In the latter case, it does not follow that there was no recognition of the discount; it simply means that this Court arrived at higher indicative sentences before the application of the discount and went on to arrive at a higher aggregate sentence. In such cases, the practice is to dismiss the appeal: at [84]-[87].
Kentwell, considered. RO v R [2019] NSWCCA 183, applied.

JUDGMENT

MITCHELMORE JA: The applicant seeks leave to appeal from the sentence imposed upon him on 23 November 2023 by Judge Huggett in the District Court for 14 sexual offences that he committed between 1975 and 2021 against five child victims, each of whom was related to the applicant. Both s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW) prohibit publication of the identity of the victims or any matter which could identify them.
The applicant was committed for trial on an indictment containing 22 counts relating to four of the five victims (CG, LMC, PS and MS). On 8 March 2023, he was arraigned before her Honour and a jury and entered a plea of not guilty. The trial commenced and one victim, CG, gave evidence which concluded on 9 March 2023. The trial was then adjourned to 14 March 2023 in order for the parties to attend to what her Honour described as “appropriate matters related to potentially resolving the charges”.
When the trial resumed on 14 March 2023, the applicant was rearraigned and entered pleas of guilty to 12 of the 22 counts. In addition to sentencing the applicant for the counts on the indictment to which he pleaded guilty, her Honour sentenced him for two offences relating to the fifth victim, LM, to which he pleaded guilty in the Local Court and which were committed to the District Court for sentence.
I have set out the 14 offences to which the applicant pleaded guilty in the following table. For each offence, I have included a reference to the count on the indictment or (in the case of the last two offences) the sequence number and a summary of the charge, the victim, and the applicable provision of the Crimes Act. I have also included the maximum penalty for each offence and her Honour’s indicative sentence:

Count/ Seq	Offence	Max Penalty	Ind Sentence
2	Between 10 March 1975 and 17 March 1975, unlawful carnal knowledge of a female then of or above the age of 10 years and under the age of 16 years, namely 10 years (CG) Crimes Act s 71	10 years	7 years and 6 months
6	Between 15 June 1978 and 25 June 1978, assault a female then under the age of 16 years, namely 6 years, and at the time of the assault commit an act of indecency (LMC) Crimes Act s 76	6 years	3 years and 6 months
7	Between 27 November 1979 and 26 November 1981, assault a female then under the age of 16 years, namely 7 or 8 years, and at the time of the assault commit an act of indecency (LMC) Crimes Act s 76	6 years	4 years
8	Between 1 January 1984 and 31 December 1984, sexual intercourse without consent, knowing that the victim was not consenting, and at the time the victim was under the age of 16 years, namely 11 or 12 years (LMC) Crimes Act s 61D(1)	10 years	6 years
9	Between 1 January 1986 and 26 November 1986, sexual intercourse with a child then of or above the age of 10 years and under the age of 16 years, namely 13 years, and under his authority (LMC) Crimes Act s 66C(2)	10 years	5 years
10	Between 1 January 1986 and 26 November 1986, sexual intercourse with a child then of or above the age of 10 years and under the age of 16 years, namely 13 years, and under his authority (LMC) Crimes Act s 66C(2)	10 years	6 years
11	Between 1 January 1986 and 31 December 1986, sexual intercourse with a child then of or above the age of 10 years and under the age of 16 years, namely 13 or 14 years, and under his authority (LMC) Crimes Act s 66C(2)	10 years	6 years
12	Between 24 March 1986 and 26 November 1988, assault and at the time of the assault commit an act of indecency on a child then under the age of 16 years, namely, between 13 and 15 years, and under his authority (LMC) Crimes Act s 61E(1A)	6 years	3 years and 6 months
13	Between 26 December 1987 and 25 January 1988, assault and at the time of the assault commit an act of indecency on a child then under the age of 16 years, namely 15 years, and under his authority (LMC) Crimes Act s 61E(1A)	6 years	2 years and 9 months
14	Between 1 January 1988 and 26 January 1988, assault a child with intent to have sexual intercourse, the child being above the age of 10 and under the age of 16 years, namely 15 years, and under his authority (LMC) Crimes Act s 66D	10 years	3 years
15	Between 1 January 1980 and 31 December 1980, assault a female then under the age of 16 years, namely 4 or 5 years, and at the time the assault commit an act of indecency (PS) Crimes Act s 76	6 years	4 years
20	Between 1 January 2004 and 31 December 2008, maintained an unlawful sexual relationship with a child under the age of 16, namely 11-15 years (MS) Crimes Act s 66EA(1)	Life	8 years
Seq 2	Between 28 June 2021 and 9 July 2021, intentionally sexually touch a child then of or above the age of 10 and under the age of 16, namely 13 years, and under his authority (LM) Crimes Act s 66DB(a)	10 years	2 years and 6 months, non-parole period of 1 year and 10 months
Seq 3	Between 1 June 2021 and 30 June 2021, intentionally sexually touch a child then of or above the age of 10 and under the age of 16, namely 13 years, and under his authority (LM) Crimes Act s 66DB(a)	10 years	2 years and 6 months, non-parole period of 1 year and 10 months

Her Honour sentenced the applicant to an aggregate term of imprisonment of 22 years to date from 20 September 2021 and to expire on 19 September 2043, with a non-parole period of 16 years and 6 months dating from 20 September 2021 and expiring on 19 March 2038. The applicant sought leave to appeal against the sentence on three grounds:

The sentencing judge erred in failing to provide a numerical discount for the guilty pleas entered to the counts on the indictment.

The sentencing judge erred in not being satisfied that the evidence established that there were factors personal to the applicant that were causally connected with, or which materially contributed to, the commission of the offences, or which reduced the applicant’s moral culpability.

The aggregate sentence imposed was manifestly excessive.

The Crown accepted that it is open to this Court to find that the sentencing judge had erred in the manner alleged in ground 1, and that the error had the capacity to influence the aggregate sentence that her Honour imposed. For the reasons outlined below I agree that ground 1 is made out, and that it is necessary to resentence the applicant as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”). Ultimately, my conclusion on resentence is that no lesser sentence is warranted in law. Accordingly, I would grant leave to appeal and dismiss the appeal.

The evidence before the sentencing court

The Crown tendered two sets of agreed facts, one relating to the offences on the indictment against CG, LMC, PS and MS, and the other relating to the offences against LM. The Crown also tendered the applicant’s criminal history and an extract from the Bar Book Project regarding Childhood Sexual Abuse. Each of the five victims prepared a victim impact statement which the Crown tendered. LMC and PS read their victim impact statements, as did CG in part (the balance was read by her support person), while the Officer in Charge read the victim impact statement of MS and a different officer read the victim impact statement of LM.
The applicant tendered three psychological reports prepared by Dr Sharon Klamer, forensic psychologist. In her first report, dated 18 May 2023, Dr Klamer noted that she had been instructed not to discuss with the applicant his account of, or attitude towards, the offending. The stated purpose of Dr Klamer’s second report, dated 31 October 2023, was to discuss with the applicant the details of his offending, which she did in an interview with him on 26 October 2023. The third report, dated 14 November 2023, also referred to this purpose but added that the report served to outline this information in the interview “and to discuss the relevance of this to his risk of recidivistic behaviour”.
It is necessary to refer to the agreed facts in some detail. In so doing, I will draw upon the sentencing judge’s identification of particular features of each of the offences that were relevant to objective seriousness. The applicant took issue with an aspect of the sentencing judge’s approach to his subjective case (ground 2) but no issue was taken with her Honour’s findings regarding the offending and its objective seriousness.

The counts on indictment

The applicant was born in November 1953. He was married to CS and they had four children, a son and three daughters, PS, LMC and KM. PS and LMC were two of the victims of the offences on the indictment to which the applicant pleaded guilty, while KM’s daughter, LM, is the victim of the offences to which the applicant pleaded guilty in the Local Court. The fourth victim, CG, is the adopted younger sister of his wife, meaning that CG is the applicant’s sister-in-law. The fifth victim, MS, is the applicant’s great-niece.

The offence against CG (count 2)

The applicant is older than CG by some 11 years. At the time of the offending constituting count 2 (unlawful carnal knowledge of a girl of or above 10 years and under 16 years contrary to s 71 of the Crimes Act), CG was approximately 10 years old. The offence occurred on a day in March 1975, on or around the day PS was born. The applicant asked CG to come back with him to the unit he shared with CS at the time in order to help him look after their two other children (LMC and her brother) because CS was in hospital with the baby. When CG arrived at the unit, she discovered that no one else was there.
CG was wearing a skirt, a t-shirt, a jumper and underwear. The applicant instructed CG to take off her underpants, lie on the bed and place her hands above her head. The applicant used rope to tie CG’s wrists to the bedhead, and he also tied her legs. He then began rubbing his exposed penis on the outside of CG’s vagina before placing the head of his penis into the start of the vaginal canal. CG recalled that the penetration was sufficient to hurt but not to make her bleed.
The applicant kept CG at the unit for most of the day, and eventually told her to put her underpants on. He gave her a $2 note and walked her out the front door, threatening her not to say anything to anyone. CG later told the CS (the applicant’s wife and CG’s adoptive sister) about what happened when she was in hospital, and said that she was going to go home and tell their mother. The applicant’s wife told CG not to do that because the applicant was the father of her children and was supporting her and making money for the family. As the sentencing judge said, there was no evidence that the applicant was responsible for what his wife said to CG. CG did not tell her mother at that time.
The sentencing judge found that the particular matters that were relevant to the objective gravity of count 2 included:

CG was 10 years old and at the bottom of the age threshold for the offence;

CG attended the applicant’s home under the pretence of helping him care for his children, but no children were home;

CG was tied up;

the offence necessarily involved penetration to some extent of CG’s vagina by a penis, however it was not full penetration;

the conduct hurt CG;

protection was not used;

the applicant gave CG money and threatened her not to tell anyone; and

while the offence was of non-specific duration and likely relatively short, the context in which it occurred made it a very serious offence.

The offences against LMC (counts 7, 8, 9, 10, 11, 12, 13, 14)

LMC is one of the applicant’s biological daughters. There is an age difference of approximately 19 years between the applicant and LMC. The offences against LMC occurred from when she was approximately 6 years old (count 6) to when she was approximately 15 years old (count 14). With the exception of count 13, all of the offences occurred in the family home.
Count 6 (indecent assault upon a female under the age of 16 years contrary to s 76 of the Crimes Act) occurred on a day in June 1978, when LMC was approximately six years old. She was playing outside the family home in Bidwell with two children who lived nearby. The applicant called her to come inside, and she went into the living room and approached the applicant. He immediately touched LMC’s vagina on top of her clothing with one of his hands (that being the act the subject of the count) and began masturbating himself with his other hand He then told LMC to hold his penis and instructed her on how to masturbate him. LMC remembered touching the applicant’s penis but could not recall if she masturbated him or if he ejaculated. This was the first time she had seen a penis. The incident was of short duration and afterwards she went back outside to play.
Relevantly to the objective gravity of this count, the sentencing judge identified that LMC was six years old, which was “very far removed from the upper age threshold for this offence”. The touching that was the subject of the offence occurred over her clothing. At the time of committing the offence, the applicant was masturbating himself and instructing LMC as to how to masturbate him.

Count 7 (indecent assault upon a female under the age of 16 years contrary to s 76) occurred when LMC was around seven or eight years old. The applicant woke her in the night and took her into the living room, removed the bottom half of her pyjamas and told her to lie on the lounge. He then rubbed Vaseline on his penis, laid down on his side and told LMC to lie in front of him. The applicant placed his penis between the upper part of LMC’s legs, such that his penis touched her vagina, and rubbed his erect penis back and forth against her vagina before ejaculating on her legs. After getting a towel and wiping between her legs, the applicant told LMC to put her pyjamas back on and go back to bed. Particular matters that the sentencing judge considered were relevant to the objective gravity of this offending included LMC’s age which, at seven or eight, was far removed from the upper threshold of the offence, and that it involved skin-to-skin contact and the applicant ejaculating on LMC.
Count 8 (sexual intercourse without consent, knowing there is no consent, with a person under the age of 16 years contrary to s 61D(1) of the Crimes Act) occurred sometime in 1984, when LMC was in Year 6. The school camp to Canberra was approaching and LMC needed a new coat for the camp. She asked the applicant if she could go on the camp and said that she needed a new coat, to which he replied, “You can go on camp if you suck my cock. I will give you $10 for the new coat”. In the leadup to the camp, LMC came home one evening with a note about the camp. She was home alone with the applicant and he approached her and said, “Suck my dick, don’t use your teeth and keep your mouth wide open.” When she told him she did not want to do that, the applicant replied, “If you want the coat, you’ll do it.” The applicant held LMC’s head and forced it on to his penis, moving it back and forth until he ejaculated into her mouth, causing her to gag. He instructed her to swallow his ejaculate, which she did, causing her to gag and heave again.
The sentencing judge found that particular matters that were relevant to the objective gravity of count 8 included:

LMC was 11 or perhaps just 12 years old and well below the upper age threshold;

the applicant manipulated LMC to engage in the offence;

LMC told the applicant that she did not want to fellate him;

the applicant used a degree of force to commit the offence;

the applicant ejaculated in LMC’s mouth and told her to swallow his ejaculate.

Counts 9 and 10 were offences of sexual intercourse with a person of or above the age of ten years and under the age of 16 years and under authority contrary to s 66C(2) of the Crimes Act. The offending occurred sometime in 1986 when LMC was 13 years old, and she and her brother had been left in the applicant’s care for a few days. The applicant told LMC that she would be sleeping in his bed that night, and he locked the back door from the inside (LMC’s brother slept in a room attached to the back of the garage). LMC did not want to sleep in the applicant’s bed because she was scared of him.
When LMC was on his bed, the applicant undressed her, rubbed Vaseline on his penis and on her vagina and then made her sit on top of him. The applicant grabbed her waist and moved her body back and forth on his penis, such that his penis was rubbing outside her vagina. He then used his fingers to rub the outside of LMC’s vagina and labia, and then in and around her labia (count 9). The applicant then performed cunnilingus on LMC (this was not charged) and while this was occurring he got on top of her and instructed her to fellate him. The applicant said to LMC, “You like what I’m doing, your vagina is wet and moist”. LMC was gagging when the applicant’s penis was in her mouth, and he ejaculated in her mouth and told her to swallow (count 10). Afterwards LMC’s vagina and labia were sore and burning.
The sentencing judge identified the particular matters that were relevant to the objective gravity of counts 9 and 10 as including:

LMC was 13 years old, approximately in between the lower and upper age thresholds for the offence;

count 9 involved rubbing in and around LMC’s labia, and the penetration of her genitalia was minimal but in circumstances where the applicant had previously rubbed his penis against her vagina;

count 10 involved fellatio and ejaculation into LMC’s mouth and the applicant telling her to swallow his ejaculate; and

at the time of committing count 10 the applicant performed cunnilingus on LMC and humiliated her by telling her that she liked what he was doing and that her vagina was wet and moist.

Count 11 (a further offence contrary to s 66C(2) of the Crimes Act) occurred sometime in 1986 when LMC was 13 or 14 years old. LMC was alone with the applicant on a Saturday evening and was in the loungeroom when he came in, pushed her onto the floor and lay on top of her. He put his hands down her pants and ripped her pants and underwear. LMC started screaming “Rape, rape, rape, someone help me” and the applicant said, “Shut up or I’ll hit you”. He then covered LMC’s mouth and inserted his finger into her vagina twice, moving his finger up and down inside her vagina and causing her to feel pain and burning. LMC could feel the applicant’s erect penis against her leg, and she placed her foot in the crook of his arm, which pushed his arm out. The applicant responded by hitting LMC across the face with his open palm, causing her immediate pain and burning to her face and cheek.
The applicant started to undo his pants, and LMC pleaded, “No, please stop, someone help me”. He suddenly stopped and went to the bathroom. LMC’s vagina was sore. A few hours later, when her mother returned home with LMC’s maternal aunt and her partner, LMC said, “Dad raped me with his finger.” The applicant denied this and called LMC a liar.
In addition to LMC’s age at the time, which was approximately in between the lower and upper age thresholds for the offence, the sentencing judge considered the following matters to be relevant to the objective gravity of this offending:

the offence involved the use of force;

the applicant threatened to harm LMC if she continued to call for help;

the offence caused LMC to feel pain;

the applicant stopped when LMC pleaded for him to stop; and

when LMC made a complaint about the offence the applicant said she was a liar.

Count 12 (indecent assault of a person of or above the age of 14 years and under the age of 16 years and under authority contrary to s 61E(1A) of the Crimes Act) occurred sometime between March 1986 and November 1988, when LMC was between 13 and 15 years. When she was alone with the applicant in his bedroom, he pulled out a small metal vibrator and used it on LMC’s genital area. He said to her, “We are working up to put my cock into your vagina. Let me put it in now.” LMC replied “No, no, no.” She could not recall if he had his penis out at the time. Relevantly to the objective gravity of this offending, the sentencing judge noted that LMC was slightly above midway between the lower and upper age threshold and that the offence involved the use of a vibrator.
Count 13 (another offence contrary to s 61E(1A) of the Crimes Act) occurred sometime between December 1987 and January 1988, when LMC was 15 years old. The applicant was teaching LMC to drive, and she was driving in bushland in Nowra and he was sitting in the passenger seat. LMC observed the applicant masturbating and while doing that he attempted to put his hands down her pants, causing her to slam on the brakes, which made the applicant stop. After this occurred, LMC intentionally drove so badly that the applicant would not give her driving lessons. Relevantly to the objective gravity of this offence, the sentencing judge noted that LMC was approaching the upper age threshold and that the offence was committed while the applicant was purportedly teaching her to drive and while he was masturbating.
Count 14 (assault with intent to have sexual intercourse with a person of or above the age of 10 years and under the age of 16 years and under authority contrary to s 66D of the Crimes Act) occurred sometime in 1988, when LMC was 15 years old. The agreed facts on sentence record the following:

“54. The victim recalls an incident in 1988 the night before the family were going to watch the tall ships at Point Perpendicular. At that time the family was living in … Nowra. The victim heard her mother and the offender having a verbal argument. The victim heard her mother state, ‘Do it then, go and get her’, and, ‘No, leave me alone, go and do it, I don’t care.’
55. The offender walked into the victim’s room and said, ‘Come into my room’. The offender grabbed her by the hand and led her into his bedroom. The victim yelled loudly, ‘No.’
56. [LMC’s mother] was on the bed, facing the opposite direction at the time. The offender attempted to get the victim on the bed, but she resisted and tried to walk out the bedroom door. The offender closed the bedroom door. The offender pushed the victim onto the bed, using his body weight to get her there.
57. The victim called out to her mother and said, ‘Mum, help, make Dad stop’. [LMC’s mother] said, ‘Stop it.’ The victim went back to her bedroom and blocked her bedroom door on the inside with a chest of drawers.”

LMC’s sister, PS, recalled a night before her family went to look at “boats”, when she heard her mother say, “No, [DS], leave me alone”, and “No, [DS], go fuck [LMC], leave me alone”. PS heard her father get up and go into LMC’s room and she heard LMC screaming for help.

The offence against PS (count 15)

PS is also the applicant’s biological daughter, with a 22-year age difference between her and the applicant. Count 15 (indecent assault upon a female under the age of 16 years contrary to s 76 the Crimes Act) occurred sometime in 1980, when PS was around 5 years old. She was playing outside with a neighbour when the applicant called her home. The applicant was lying on the bed in PS’s brother’s bedroom with his pants undone. The applicant said to her, “My cock is sore, can you help me, I need you to rub it better”. He took PS’s hand and placed it on his penis and started moving it up and down, before taking her other hand and placing it on his penis and using both of her hands to rub his penis up and down.
The applicant then said to PS, “Can you kiss it better?”. PS said that she couldn’t, so he moved to the edge of the bed and PS kissed his penis a few times (count 15), asking “Is it better?”. The applicant said, “Kiss it more”. PS did this and then the applicant asked her to rub it more, to which she replied that she could not because her hand hurt. The applicant placed his hand over PS’s hand and continued to masturbate until he ejaculated. He then said, “Good girl”. PS asked if she could go back outside and play, which he allowed. In her remarks on sentence, her Honour identified the following particular matters as relevant to the objective gravity of the offence:

PS was five years old and very far removed from the upper age threshold for the offence;

the touching was skin-to-skin; and

the applicant placed PS’s hands on his penis and had her masturbate his penis until he ejaculated.

The offence against MS (count 20)

Count 20 on the indictment was an offence of maintaining an unlawful sexual relationship with MS, then a child under the age of 16, contrary to s 66EA(1) of the Crimes Act. The victim, MS, is the applicant’s great-niece and is approximately 40 years younger than him. The offence occurred in the period between 2004 to 2008, when MS was 11 to 15 years old and the applicant was 50 to 55 years old.
From the age of two, MS’s parents would drop her at the home of the applicant and his wife, where they would look after her. In her early teenage years, MS would go there every Saturday and the applicant’s wife would teach her to bake. MS recalled the first incident of unlawful sexual activity occurring on one such Saturday morning in 2004, when she was 11 years old. After she and the applicant’s wife finished baking, MS went into the applicant’s bedroom to watch the horse races with him, while the applicant’s wife was in the lounge room watching television.
The applicant sat on the bed next to MS and he used his fingers to rub her legs, starting on the outside before moving to the inside of her thigh. He then moved off the bed and knelt in front of MS, placing his hands on her knees and trying to open her legs. MS said, “No” and tried to move away from him, but the applicant climbed on to the bed on top of her and said, “It’s okay, it’s going to be okay”. MS was continually saying, “No” and the applicant was “shushing” her.
The applicant removed MS’s underwear and moved his body down so that his head was between her legs and used his mouth and tongue to perform oral sex on MS. MS’s ears were ringing and felt like she could not move. The applicant stopped and moved away from MS, and she dressed and left the room. Similar incidents became a regular occurrence when MS was at the applicant’s home between 2004 and 2008. The applicant would perform oral sex on MS, and then he started to use his fingers to penetrate her vagina whilst performing oral sex. The incidents occurred so frequently that MS could not remember how many times it happened.
In 2006 or 2007, when MS was 13 or 14, she was at the applicant’s home for the weekend. When she was in the living room with the applicant’s wife, the applicant called out to MS from his bedroom. When she walked into the bedroom, the applicant said wanted to show her something. MS asked what that was, whereupon the applicant pushed her against the window in the bedroom (the blinds were closed) and stood behind her. MS tried to turn around and get away but the applicant kept turning her back to face the window while also trying to pull her trousers down. MS said, “No, I don’t want to”. The applicant then pushed MS’s trousers down and placed his penis between her thighs and against her vagina. He moved his body back and forth causing his penis to rub between her thighs and against her vagina. At some point he stopped and MS pulled her pants up and returned to the loungeroom where the applicant’s wife was.
As the sentencing judge observed, recognising that the gravamen of the offence committed was the maintenance of an unlawful sexual relationship, the duration of the unlawful relationship was four years and the nature of the unlawful sexual, being cunnilingus, digital penetration, and on one occasion, the applicant forcefully masturbating himself by rubbing his penis against MS’s vagina. The maximum penalties for the unlawful sexual activity during the offending period were:

20 years imprisonment where the applicant committed an act of sexual intercourse upon MS when she was above the age of ten and under the age of 14 and under his authority (s 66C(2) of the Crimes Act);

12 years imprisonment where the applicant committed an act of sexual intercourse upon MS when she was above the age of 14 and under the age of 16 and under his authority (s 66C(4) of the Crimes Act); and

7 years imprisonment where the applicant indecently assaulted MS when she was under the age of 16 and under his authority (s 61M(1) of the Crimes Act).

The offences against LM (sequences 2 and 3)

LM is the applicant’s granddaughter. There is an age difference of approximately 55 years between the applicant and LM, and at the time of the offending she was approximately 13 years old. The applicant would regularly collect LM from school, take her to the home he shared with his wife for between an hour and an hour and a half, and then take her to netball practice.
Sequence 3 (intentionally sexually touching a child of or above the age of ten years and under the age of 16 years contrary to s 66DB(a) of the Crimes Act) occurred on a day in June 2021 when the applicant collected LM from school and brought her to the home he shared with his wife. LM was sitting on the floor in her grandmother’s bedroom watching a movie on her phone. The applicant walked into the room and climbed across the bed towards LM, telling her to hurry up because he was about to take her to netball practice. The applicant then used his hands to rub up and down LM’s thighs, including her inner thigh, before placing his hands on her vagina and rubbing up and down over her clothing. This occurred for about half a minute. The applicant stopped when LM said, “Okay let’s go”, and he took her to netball. The sentencing judge noted that LM was 13, in between the lower and upper age threshold, and that the touching occurred over her clothing.
Sequence 2 (another offence contrary to s 66DB(a) of the Crimes Act) occurred on a day in the school holidays in June/July 2021, when LM (still aged 13) and her two younger brothers were at their own home and under the care of the applicant and his wife. LM, who was wearing jeans and an oversized shirt, was lying on her bed resting her laptop on her knees doing homework. The applicant entered the room and, after a brief conversation, sat on the bed near her feet. He then placed his hand on the bottom of LM’s leg, around her shin and moved it up to her inner thigh and in between her legs whereupon he rubbed her vagina up and down over her clothes. The applicant stopped when LM’s grandmother called out to ask about lunch and he walked out of the bedroom. As with sequence 3, the sentencing judge noted that LM was 13, in between the lower and upper age thresholds, and that the touching occurred over LM’s clothing. Her Honour also noted that the offence occurred in LM’s home.

The police investigation

The agreed facts in relation to LM indicate that on 21 July 2021, a report was received at the Child Abuse Unit Illawarra relating to LM. Investigators met with LM on the same day and she took part in an electronically recorded interview, disclosing the two incidents of sexual touching that were the subject of sequences 2 and 3. The applicant was arrested on the same day. He declined to participate in an electronic interview but consented to a DNA sample being taken by buccal swab. As a result of applicant’s arrest in relation to LM the other four victims came forward, and on 22 September 2021 he was arrested and charged in relation to offences committed against them. The applicant was bail refused from that time.

The other material in the Crown case

As the sentencing judge found, the criminal histories that the Crown tendered indicated that the applicant had no relevant criminal history (I will address her Honour’s findings on good character below). The victim impact statements that were read by or on behalf of the five victims were described by her Honour as expressing, as common themes, “feelings of shame, confusion and anxiety, persistent stress, problems with relationships, trust and sleep and flashbacks”, as well as struggles being around older men. Her Honour stated:

“[CG, LMC and PS] have all found it difficult to form trusting relationships and have been particularly concerned for their respective children’s wellbeing. [LMC and PS] describe how the offender robbed their own families of normal loving relationships, particularly between their own daughters and their daughters’ fathers.
[CG] spoke about not being heard or believed when she first reported the abuse. She suffered a heroin addiction for many years due to the offending. Sometimes, the trauma is so overwhelming it prevents her from travelling back to country and sharing cultural stories.
[LMC] expressed the pain of watching her sister, the offender’s daughter and [LM’s] mother pass away from cancer in the midst of the criminal proceedings. She writes that the offender robbed [LM’s mother] of any quality time because of what the offender did to her daughter.

[PS] experienced suicidal ideation. She also tried to speak up but no action was taken. She feels her own experiences have negatively impacted upon her children’s ability to trust, socialise and interact with others and for this she feels immense guilt.
[MS] described that she had been denied a normal life because of the offences. She cannot go a day without having a flashback which makes her feel gross, disgusted, used, unlovable and unwanted. She struggles greatly with trust and feels she lives in a constant ‘fight or flight’ mode. She has lived the majority of her life in shame and continues to blame herself for the offences.
[LM] describes feelings of confusion and that her relationship with her father and brother has changed and of course her mother is now sadly deceased. She has also lost her relationship with her nan, [CS] (the offender’s wife). She struggles to make friends and struggles with trust and no longer engages in activities she used to love, such as netball. She cannot wear certain clothing and is scared to be around older men.
It is the experience of the court that the effects of child sexual offending stay with the victim for many years, if not their entire lives. This is one of the reasons why offences of this type are viewed very seriously by the courts.”

The applicant’s personal circumstances

As the sentencing judge observed, the evidence about the applicant’s personal circumstances was contained in the three reports of Dr Klamer. In her first report, Dr Klamer recorded that the applicant was the middle of ten children born to his parents, with the family having relocated from South Australia to Broken Hill before settling in the Lake Macquarie area. The applicant’s father was an alcoholic who was physically abusive to his mother and his siblings. His father’s violence towards his mother resulted in her hospitalisation on occasion, and at times the applicant and his siblings would leave the family home in the middle of the night to seek help from neighbours and friends to protect their mother. The violence reduced in frequency and severity when the applicant and his siblings grew older and could stand up to their father, although it persisted.
There was also financial stress throughout the applicant’s childhood, due to the size of the family, his father’s limited employment opportunities and the amount of money he spent on alcohol. The applicant recalled catching rabbits or kangaroos to provide additional food for the family.
The applicant attended high school until the age of 15 and denied any learning difficulties, leaving school to pursue paid employment. He was consistently employed across a range of jobs, including working at Woolworths for over 20 years. He identified providing for his family as a primary goal, although financial difficulties persisted particularly after the move to Nowra.
The applicant met his wife when he was 18 years old, and they married shortly thereafter. He described their relationship as stable and positive and denied any significant conflict. Her physical and mental health had deteriorated over the last 15 years following a work-related injury; and their sexual and non-sexual intimacy had been impacted by their physical separation when the applicant moved to Tamworth some eight years ago (his wife was unable to accompany him due to her workers compensation requirements).
The applicant had a limited history of substance abuse. He consciously focused on avoiding alcohol so as to distance himself from any resemblance to his father. The applicant’s alternative coping strategies included work and spending time alone in the bush, or at the beach. He described a limited social support network, which Dr Klamer considered likely adversely affected his coping strategies.
The applicant had some health issues although he reported to Dr Klamer at the time of her first report that his health felt stable and settled at his current custodial location. The applicant denied any mental health difficulties before being charged. Since being charged, he had attempted to overdose twice with blood pressure medication and reported an attempt to commit suicide by cutting his wrists. On the psychological assessments that Dr Klamer administered, the applicant appeared apathetic about his future and disclosed feeling helpless and hopeless. Dr Klamer stated in her first report at [29]:

“Based on available information, [the applicant] appears to have committed the sexual offences on the background of a traumatic and abusive developmental history, noting a possible impact of such on his sexual development. Furthermore, [the applicant] appears to have experienced an associated limited exposure to appropriate coping and modelling behaviours, ongoing financial stress, intimacy deficits, social isolation, and interpersonal stressors pertaining to his wife’s declining health. These factors have all likely contributed to the commission of the index sexual offences.”

In his interview with Dr Klamer in October 2023, which formed the basis of the second and third report, the applicant acknowledged that when he was six or seven years old he was sexually abused by an older sibling. The abuse stopped when he told another sibling who addressed the issue. He did not disclose details of the sexual offending again until some five years ago when further siblings discussed similar experiences. Dr Klamer described the applicant’s insight into any possible impact of such sexual abuse as limited. She expressed the opinion that given his overall disadvantaged development, the applicant’s sexual victimisation as a child “likely further contributed to distortions in the development of prosocial emotional, behaviour and sexual self-regulation, contributing to the commission of the index offences”.
In relation to the offending, the applicant told Dr Klamer that he had pleaded guilty to all allegations to obviate the need for the victims to give evidence. He accepted responsibility for offences against “victims two and four” (LMC and MS), and acknowledged further incidents in relation to victims one (CG) and five (LM) that were misinterpreted. The applicant expressed ongoing frustration about the remainder of the allegations, “unsure why the victims would accuse him of such behaviour, particularly victim three [PS]”. In her third report, Dr Klamer noted that in relation to the offences he admitted or partially admitted to, the applicant provided the following details:

“i.   Victim two [LMC]: [The applicant] was generally unable to recall details of these offences, except for one incident that occurred when she was approximately 14 years of age (approx. 1986). [The applicant] was unable to describe any specific details of his behaviour when asked, becoming increasingly distressed.
ii.   Victim four [MS]: [The applicant] accepted that on a number of occasions when the victim was aged approximately 13-14 years of age (2006-2007) he performed fellatio on her. [The applicant] was aware that his actions were illegal, as evidenced by him arranging to relocate from Nowra to Tamworth to reside with his daughter, so as to remove himself from committing further offences against this victim.
iii.   Victim one [CG]: [The applicant] recalled one instance when the victim was on the toilet and [the applicant] entered the bathroom ‘with my penis out to go to the toilet’. He denied any sexual intent associated with this behaviour. [The applicant] was unable to estimate when this offence occurred.
iv.   Victim five [LM]: [The applicant] described their interactions as ‘wrestling … innocent … there was an accidental kiss…’. This offence was estimated to occur when the victim was aged approximately 14.…”

Dr Klamer identified a number of distorted beliefs and cognitions relating to the victims, which “likely contributed to the commission of the offences”. As to MS, for example, the applicant said that “she told me things … built up to it … we were left alone too often”. He denied any deviant sexual fantasies, although given the offences occurred over several years against five victims and with varying degrees of intrusiveness, which suggested to Dr Klamer that the applicant likely entertained sexual fantasies and/or was sexually attracted to the victims at the time of his offending.
In her third report, Dr Klamer provided the following updated case conceptualisation:

“Overall, [the applicant] presented as accepting responsibility for some of the offences, whilst minimising the severity of others. He continued to deny the commission of several offences, particularly against victim number three [PS]. He expressed the view that providing an explanation of the offences was an example of him making ‘an excuse for his behaviours’, which resulted in a reluctance on his behalf [to] consider his offence pathway in any meaningful way.
Based on available information, and noting the limitations previously outlined, [the applicant] appears to have committed the index sexual offences against a background of significant developmental disadvantage. Notably, he was exposed to sexual, violent, and emotional abuse, in combination with financial distress and parental substance use. These factors likely impacted on him developing prosocial morals, values, and ethics, and subsequently on the development of his emotional, sexual, and general self-regulation. Specifically, [the applicant’s] offending appears to have occurred at times of adversity, such as during times of financial and emotional stress, suggesting that he potentially attempted to use sex to regulate his emotions. It is noted that he also reportedly felt a sense of emotional isolation prior to some offences, potentially indicating that there were non-sexual elements to his offending (ie a desire to establish non-sexual intimacy with the victim). There was insufficient information relating to the extent that he was able to meet his sexual wants within his marital relationship, although an element of unmet sexual needs appeared also likely present. It is unclear if this is because he was attracted to children (and obviously unable to meet these interests within an age-appropriate relationship) or because the frequency and, or, nature of his sexual relationship was perceivably unsatisfactory. This will be an area that requires further exploration in treatment. In my opinion, there are indications that [the applicant] knew that his offending was morally wrong and illegal. He likely formed a distorted narrative to overcome this and likely sexualised behaviours from the victims, which were not sexual in nature.”

The remarks on sentence

After setting out the facts on sentence, addressing the victim impact statements and summarising the material in Dr Klamer’s reports, the sentencing judge addressed a submission made by the applicant that he was entitled to a degree of leniency given aspects of his background and upbringing. Her Honour accepted that it was “clear” the applicant had experienced deprivation and dysfunction “which had and continues to have an enduring impact on him”. Her Honour said that she took this into account “in a general way”. However, she was not satisfied that the evidence established “that there are factors personal to him that are causally connected with or materially contributed to the commission of the offences or that reduce his moral culpability”.
In relation to good character, the sentencing judge noted that the applicant did not have a previous criminal history but found that the weight to be given to this was “substantially diminished by reason of the fact he committed so many serious offences over a lengthy period of time”. Although the applicant was in his early 20s when he began offending, her Honour had no doubt that he knew that his behaviour was “not only illegal but very wrong”. Her Honour found that the applicant’s moral culpability was high.
The reports of Dr Klamer suggested that the applicant had very little insight into his offending and that any apparent remorse was questionable. Her Honour was prepared to find that the applicant presented as a low risk of reoffending in light of his predicted age upon release and the fact that his access to children at that time would be limited. Her Honour assessed his prospects of rehabilitation as guarded, noting that he continued to deny sexual attraction to children. As a result of the offences the applicant was not in contact with his family, which the sentencing judge accepted would make his experience in custody more onerous.
Taking into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), her Honour noted that ensuring the applicant was adequately punished for his offending was an important factor in the sentencing exercise, noting the courts’ repeated emphasis of the serious nature of sexual offending against children. Deterrence was also a very important consideration, as was denunciation. Her Honour took into account the delay between the offending and the sentencing, noting that there was no evidence that the delay in making complaints had left the applicant in a state of suspense of the kind that Street CJ referred to in R v Todd [1982] 2 NSWLR 517 at 519-520. Her Honour also referred to the impact of the delay in terms of the applicant being older when he served his sentence, which would be more onerous than if he were he younger and fitter. However, that needed to be balanced against the fact that “having sexually assaulted five victims over many, many years, he escaped justice for decades and enjoyed a life in the community free from the punishment for his crimes”.
In relation to totality, the sentencing judge recognised that regard must be had to the fact that the applicant committed “multiple separate instances of serious sexual offending against five victims over a period just short of five decades”. At the same time, her Honour acknowledged that by reason of the number of offences committed and their nature, if she were partially to accumulate to reflect repeated nature of the offending the result would be the imposition of a sentence that would be manifestly excessive. Faithful compliance with the totality principle meant “that the offender has received a relatively modest accumulation for his offending”. In fixing the appropriate overall aggregate sentence, her Honour took into account all matters that could have amounted to special circumstances and did not reduce the statutory ratio.

Ground 1: error in failing to provide a numerical discount for the guilty pleas on the indictment counts

As I have noted above, on 14 March 2023, after his trial had commenced and CG had given evidence, the applicant entered pleas of guilty to 12 of the 22 counts on the indictment. Pursuant to s 25D(1) of the Sentencing Procedure Act, if an offender pleads guilty to an offence dealt with on indictment “at any time before being sentenced”, the court “is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section”. As Bell CJ stated in R v Doyle (2022) 108 NSWLR 1; [2022] NSWCCA 81 at [6] (Bellew and Ierace JJ agreeing), s 25D is “mechanical in the sense that a specified percentage reduction of the sentence that would otherwise have been imposed must be applied in the circumstances specified in the statute” and “[n]o element of discretion is involved”.
Section 25D(2) sets out the following discounts:

(2)    Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows—
(a)    a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence,
(b)    a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender—
(i)    pleaded guilty at least 14 days before the first day of the trial of the offender, or
(ii)    complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

In the present case, the applicable numerical discount for the applicant’s guilty pleas in respect of the counts on the indictment was 5%: s 25D(2)(c). The fact that CG had given evidence before the applicant entered those pleas did not alter that statutory fact: WP v R [2024] NSWCCA 77 (“WP”) at [108]. However, as in WP, the parties provided the sentencing judge with incorrect information on the application of the statutory discount. The Crown wrongly submitted on sentence that a numerical discount under s 25D was not available in circumstances where the plea was entered after CG had given evidence, albeit also acknowledging the benefit of applicant entering pleas when he did in terms of saving the other victims from having to give evidence. Counsel for the applicant did not take issue with those submissions.
The sentencing judge accepted those submissions and did not apply the statutory discount, stating:

“The statutory scheme that governs the discount to be afforded for the utilitarian value of a plea of guilty does not entitle the offender to a numerical discount for the 12 pleas of guilty he entered during the trial. However, that course was a very significant one because it spared three of his victims (but not [CG] who completed giving evidence before he was rearraigned and pleaded guilty) the trauma associated with giving evidence and being cross-examined. The courts and the community are now far more aware of the profound and enduring effects sexual abuse inevitably has upon children, particularly when the perpetrator is someone within the family. That understanding underpins s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW)…
Suffice to say, when sentencing the offender for the offences committed upon [LMC], [PS] and [MS] (and [LM]) I have kept in mind that his pleas of guilty meant that those victims were not required to give evidence and were thus spared the trauma and distress associated with giving evidence regarding sexual offences committed upon them by a trusted adult.”

The first sentence of this extract was wrong as a matter of law. Although s 25F(8) of the Sentencing Procedure Act provides that the failure by a court to comply with Division 1A does not invalidate the sentence imposed, as Wilson J noted in WP at [109], that provision must be read with s 101A, which provides that “[a] failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence”. As Simpson J observed in R v Tuncbilek [2004] NSWCCA 139 at [33], in relation to s 54B(5) of the Sentencing Procedure Act (now s 54B(7)), which is expressed in similar terms to s 25F(8), the provision “does not preclude this Court finding error where there is demonstrated non-compliance with the provisions of the Sentencing Procedure Act”; see also Panetta v R [2016] NSWCCA 85 at [36] (N Adams J).
By reason of the error affecting the 12 counts on the indictment to which the applicant pleaded guilty, it is necessary for the Court to consider whether, in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”), “some other sentence, whether more or less severe is warranted in law and should have been passed”. That exercise necessarily includes resentencing on the two offences involving the victim LM, even though the sentencing judge made no error in applying a 25% discount in relation to the indicative sentences for those offences (the applicant having pleaded guilty to those offences in the Local Court).

Is some other sentence warranted?

In the event that the Court moved to resentence, the applicant relied on a brief affidavit that he swore on 28 November 2024. He referred to being content in his present custodial circumstances, being employed in the kitchen as a cook for about four and a half days per week. He described having little to no contact with anyone outside of custody. Consistently with the basis on which the sentencing judge sentenced the applicant, he described receiving no visits from family. The applicant deposed that his wife was not in good health and was taking steps to divorce him; and that his son was looking after CS.
I have addressed the nature of the offending conduct in detail above. As the sentencing judge found, the applicant engaged in sustained offending of a very serious kind over a lengthy period of time, against five victims. Her Honour identified a number of features of the applicant’s offending which are relevant in this regard:

Although age is an element of each offence and must not be double-counted, the actual age of each victim within the range in the offence provision is relevant. Generally speaking, the younger the victim and the further removed from the upper age threshold for which the offence makes provision, the more serious the offence. In the case of his offending against CG and PS, in respect of a number of the initial offences involving LMC, and in relation to the commencement of the unlawful sexual relationship with MS, they were each at an age that was well below the upper age threshold for the relevant offences at the time the applicant committed the offences.

With respect to the offences committed against the victims when they moved into early adolescence, it is important to recognise that the emotional and psychological harm caused to an adolescent who experiences sexual offending by a trusted adult is considerable because by around that age the child understands the nature of the conduct.

The nature of the relationship between the applicant and each complainant was familial, noting the importance of not double-counting this where the offence provisions encompass the victim being under his authority and her Honour did not find otherwise that it was an aggravating factor. There was nonetheless a trusted relationship (of different types and degrees) between the applicant and each victim, and each offence involved a breach of that trust.

A number of the offences were committed in the home of the victim where she was entitled to feel safe, secure and protected from sexual violence.

Some of the offences involved physical force (beyond that implicit in the offence itself), occurred with the victim telling the applicant to stop and/or in circumstances where he threatened the victim not to tell anyone. The offences the applicant committed against LMC included the use of force, violence and, on one occasion, bribery. As the sentencing judge noted, where those features are absent this is “hardly a mitigating factor, given each victim was a child and under the offender’s authority”.

While the majority of the offences were of relatively short or non-specific duration, sexual offences against children often occur over a short period of time and “affording undue weight to the duration of the offence has the capacity to minimise, if not completely ignore, the profound and deleterious effects invariably caused by such offending”.

Although each offence in isolation might appear opportunistic, regard must be had to the context in which it occurred, which her Honour described as:

“… a context in which the offender was able to take advantage of the access he had to each victim arising from their familial relationship to commit offences as and when he wished. On occasions he contrived opportunities to be alone with the victim where he did as he wished with her. On occasions there was a degree of planning in that the offender had access to an item used in the commission of the offence for example, rope, Vaseline and a vibrator. That said, I am not suggesting there is present evidence of planning involving assault contemplated by s 21A(2) of the Crimes (Sentencing Procedure) Act.”

In relation to the applicant’s subjective case, counsel for the applicant accepted that the sentencing judge had taken the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) into account. However, he submitted that on resentencing this Court should find, contrary to the conclusion of the sentencing judge, that the applicant’s personal circumstances were causally connected to his offending and should have resulted in a reduction to his moral culpability. By ground 2 of his notice of appeal, the applicant had submitted that the sentencing judge should have found, on the basis of Dr Klamer’s reports, that factors personal to the applicant were causally connected to the commission of the offences or materially contributed to his offending, relying on the approach adopted in Lloyd v R [2022] NSWCCA 18 at [32] and Lupton v R [2024] NSWCCA 29 at [146]. If such a connection were so found, it might result in a greater reduction than would otherwise be the case for moral culpability.
In R v MJ [2023] NSWCCA 306 (“MJ”), Simpson AJA made the following observations about the question of “whether a causal link needs to be established between childhood deprivation and disadvantage and the commission of the offence for which the sentence is to be passed”:

“[3] In my opinion that question is apt to mislead. Where profound childhood deprivation and disadvantage has been established, to require that a causal link be established between that background and the commission of the offence is to misunderstand and undermine the ‘Bugmy principles’. It is only necessary to go to the joint judgment (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy to make the point. At [40] their Honours said:
‘The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.’

[4] Their Honours then accepted a submission made by the Director of Public Prosecutions that (contrary to the decision of this Court from which the appeal was brought) the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of the appropriate sentence in every case. Their Honours explained that by adding (at [43]):
‘The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.’

[5] Implicit in those observations is recognition that a childhood or adolescence marked by profound disadvantage may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms. The relevant causal connection is between the dysfunctional background and the offender’s impaired socialisation and adjustment to, and conduct in accordance with, those social norms. To search for a causal connection between the dysfunctional background and the offence in question is to bypass the larger issue and to focus too narrowly on the offence. It ignores the compromise of the “capacity to mature and to learn from experience”: Bugmy at [43]. The plurality in the High Court were, as I understand [40] and [43] of the judgment, acknowledging the pervasive effect of profound deprivation, which is not confined to the commission of a single offence (or series of offences).”

Ultimately, Simpson AJA considered that to disregard the effects of childhood disadvantage because no causal connection with the offence for which sentence is to be imposed is established ignores “the subtleties and nuances of the considerations that the plurality in the High Court in Bugmy recognised”. The essential question, in her Honour’s view, was the assessment of the offender’s moral culpability: at [13].
Before the sentencing judge, the Crown did not take issue with Dr Klamer’s findings about the profound deprivation that marked the applicant’s upbringing, including his exposure to sexual abuse as a child. The Crown did submit that there was no causal link to be drawn with the offending. The sentencing judge so found; and I do not consider that her Honour erred in so finding. In so far as Dr Klamer there noted a “possible impact” of the applicant’s background on his sexual development, in her third report she noted that the applicant denied any deviant sexual fantasies (about which Dr Klamer expressed the scepticism to which I have referred at [52] above); and described his sexual relationship with his wife as “normal”. Dr Klamer subsequently expressed the view that the applicant was generally unhappy during his periods of offending and failed to manage this appropriately; and that while he did not say so explicitly, “it is possible that he failed to meet his sexual and emotional needs within his marital relationship and potentially used sex (with the victims or more generally) to cope with negative emotionally (sic)”. Consistently with the qualified manner in which Dr Klamer expressed the above views, her views in her updated case conceptualisation were also contingently expressed.
Nonetheless, as Simpson AJA observed in MJ, it does not follow from the absence of such a causal link that the applicant’s background had no effect on his moral culpability for the offences he committed. Referring to the principles in Bugmy in Dungay v R [2020] NSWCCA 209, N Adams J stated:

“[138] Following from this decision it is settled that the effects of ‘profound childhood deprivation’ are to be given ‘full weight’ in every sentencing decision. As Simpson AJA noted in R v Irwin [2019] NSWCCA 133 at [3]: ‘[a]pplication of the Bugmy principles is not discretionary’. Hoeben CJ at CL had earlier commented in Ingrey v R [2016] NSWCCA 31 that consideration of the Bugmy factors is not optional, although once the factors are taken into account, countervailing factors such as the protection of the community may reduce their weight (at [35]).
[139] Although Bugmy factors must be given ‘full weight’ in every sentencing decision, this does not mean that they need to be given the same weight in every case. The extent to which the applicant’s moral culpability is reduced will vary in each case and sometimes it will not be reduced at all but instead taken into account in other ways. The purposes of sentencing are numerous and often difficult to apply when the objective and subjective factors seem to point in different directions, as the High Court observed in Bugmy at [44] …”
(Emphasis in original.)

I have considered the applicant’s subjective circumstances, as detailed in the reports of Dr Klamer. As the sentencing judge found, it is clear that the applicant experienced deprivation and dysfunction which had an enduring impact on him. In this way, his background warranted some reduction of his moral culpability for the offending, but not to a significant extent having regard to the period of time over which the applicant committed the offences; the number of victims, in respect of each of whom he was in a relationship of trust; the age of the victims at the time of the offending; and the particular circumstances surrounding the offences. It is necessary also to consider the other sentencing considerations in s 3A of the Sentencing Procedure Act, which include ensuring that an offender is adequately punished for the offences, denouncing the conduct of the offender, recognising the harm done to the victim of the crime and the community and deterring the offender and others from committing similar offences.
The maximum penalties, set out in the table at [4] above, reflect the seriousness of the applicant’s offending conduct. The offence against MS, being the maintenance of an unlawful sexual relationship which took place over four years when she was aged between 11 and 14, was, on its own, an extremely serious offence, carrying a maximum penalty of life imprisonment. The other offences carry a maximum penalty of either 6 years or 10 years imprisonment.
The victim impact statements give but a sense of the personal suffering that the applicant’s offending has inflicted across generations of his own family. For CG, LMC and PS, the impact of the offending upon them has been lifelong. The feelings they expressed were reflected in the victim impact statements of MS and LM, who are younger in age and for whom the offending was more recent. The content of the victim impact statements was consistent with what the sentencing judge described as “the generally profound and enduring impact of sexual abuse upon children, particularly when the perpetrator is someone within the family”.
I have taken into account the sentencing judge’s assessment of the applicant’s risk of reoffending as low and his prospects of rehabilitation as guarded. As the primary judge found, the delay between the offending and sentencing means that the applicant will be older when serving his sentence which will make it more onerous, balanced against which is that by avoiding justice for his many offences over many years the applicant had enjoyed a life in the community for many years free from punishment for his crimes.
The applicant’s plea of guilty certainly spared LMC, PS, MS and LM the trauma associated with giving evidence and was of benefit in that regard. However, he showed little insight into his offending as disclosed to Dr Klamer, and there was no challenge to the primary judge’s conclusion that there was little evidence that would permit a finding that he was remorseful.
Counsel for the applicant on the appeal submitted that a lesser sentence should be imposed having regard to the nature of the error in ground 1, which affected 12 of the 14 offences. He submitted that making no reduction in the indicative sentences would not reflect the policy behind the statutory numerical discount scheme, as it would provide, in effect, no acknowledgement for the applicant’s pleas. While I accept that submission has force, the function of the Court on resentence is to exercise an independent sentencing discretion, consistently with Kentwell at [42]:

“When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be ‘warranted in law’. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not ‘warranted in law’ unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.”

As counsel for the applicant also accepted, consistently with Kentwell the exercise that this Court must undertake on resentence does not involve starting with indicative sentences that her Honour imposed for the offences on the indictment and reducing them by 5%. As he also accepted, the exercise of the sentencing discretion afresh may result in starting points on the indicative sentences that are higher than those of the sentencing judge, such that the mandatory reduction would not lead to a lesser indicative sentence.
Further, having regard to the multiple counts on the indictment, a reduction in any or all of the indicative sentences for the individual counts would not necessarily lead to the imposition of a lesser aggregate sentence (which is what the appeal is from). The correct approach was described in Kentwell at [43]:

“After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender’s appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal…”
(Emphasis added.)

After emphasising this passage from Kentwell in Giacometti v R [2023] NSWCCA 150 at [136], Hamill J observed at [137] that in determining the question in s 6(3), “consideration must be given to the question of how much notional accumulation should exist between the indicative sentences for the individual offences”. That necessarily involves “a discretionary judgment in relation to which a key consideration is the extent to which the criminality for one offence is encompassed by the sentence imposed for another (or the others)”.
Having weighed all of the above matters, even incorporating the numerical discount of 5% for the pleas on the indictment to the indicative sentences at which I arrived, considering the extent of notional accumulation that would be appropriate in determining the aggregate sentence and non-parole period I would have imposed a sentence of at least the same magnitude as that imposed in the District Court. It follows that no other sentence is warranted for the purposes of s 6(3) of the Criminal Appeal Act. I would dismiss the appeal.

Conclusion

I propose the following orders:

Leave to appeal against sentence is granted.

The appeal is dismissed.

WALTON J: I have had the advantage of reading the draft judgment of Mitchelmore JA and additional observations proposed to be made by N Adams J. I agree with the conclusions reached by Mitchelmore JA and her Honour’s reasons for judgment. It follows that I also agree with the orders proposed by her Honour. I would also wish to associate myself with the observations made by N Adams J.
N ADAMS J: I agree with the orders proposed by Mitchelmore JA for the reasons provided by her Honour. I would make the following additional observation concerning the question of whether a lesser sentence was warranted in this matter.
At the hearing of this appeal, the applicant’s counsel submitted that this Court would impose a lesser sentence on the applicant when resentencing him because to do otherwise would mean that there was no acknowledgment of the policy behind the statutory numerical discount scheme. It is understandable that an offender who is deprived of a 5% discount at first instance and successfully appeals on that ground would expect that on resentence he would receive at least 5% less (putting to one side for the moment the complicating factor of the discounts being applied to the indicative sentences rather than to the aggregate sentence). But that is not what the High Court held in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

As Mitchelmore JA has explained, when this Court resentences an applicant, the original sentence is put to one side and this Court exercises its sentencing discretion afresh. It is highly likely that in doing so, this Court will arrive at a different sentence. That is particularly so when the applicant is being sentenced for multiple serious offences and an aggregate sentence is to be imposed. As the High Court has stated, there is no “correct” sentence”: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 is [27].
Sometimes the new aggregate sentence imposed will be higher than that which was imposed at first instance and sometimes it will be lower. Sometimes the new aggregate sentence will be higher even though some of the indicative sentences were lower, but the application of the totality principle has resulted in a greater degree of notional accumulation. Sometimes the new aggregate sentence will be higher even having regard to factors favourable to the applicant which were not taken into account by the sentencing judge, including a discount. In such a case, it does not mean that there was no recognition of the discount. It simply means that, consistent with a proper application of the principles derived from Kentwell v The Queen, this Court arrived at higher indicative sentences before the application of the discount and went on to arrive at a higher aggregate sentence. In such cases, the practice is to dismiss the appeal for the reasons explained in RO v R [2019] NSWCCA 183. That is what occurred in this case.

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Decision last updated: 11 April 2025

Medium Neutral Citation:	DS v R [2025] NSWCCA 53
Hearing dates:	6 February 2025
Date of orders:	11 April 2025
Decision date:	11 April 2025
Before:	Mitchelmore JA at [1] Walton J at [83] N Adams J at [84]
Decision:	(1) Leave to appeal against sentence is granted. (2) The appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeals – appeal against sentence – whether error in not applying statutory numerical discount for guilty plea entered after trial commenced – error conceded – question of whether any lesser sentence warranted in law– question of whether applicant’s moral culpability should be reduced – approach to Bugmy considerations – approach on resentence – serious offending over many years – multiple child victims – leave granted – appeal against sentence dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 66D, 66C(2), s 61D(1) (repealed), 61E(1A) (repealed), 66DB(a), 66EA(1), 71 (repealed), 76 (repealed) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D, s 25F(8), s 101A Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Dungay v R [2020] NSWCCA 209 Giacometti v R [2023] NSWCCA 150 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lloyd v R [2022] NSWCCA 18 Lupton v R [2024] NSWCCA 29 Panetta v R [2016] NSWCCA 85 R v Doyle (2022) 108 NSWLR 1; [2022] NSWCCA 81 R v MJ [2023] NSWCCA 306 R v Todd [1982] 2 NSWLR 517 R v Tuncbilek [2004] NSWCCA 139 WP v R [2024] NSWCCA 77 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 RO v R [2019] NSWCCA 183
Category:	Principal judgment
Parties:	DS (Applicant) Rex (Respondent)
Representation:	Counsel: I McLachlan (Applicant) E Wilkins SC (Respondent) Solicitors: Watsons Solicitors & Barristers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2021/00208682
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter that could identify the victims is prohibited. Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the victims’ names is prohibited.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: NA Date of Decision: 23 November 2023 Before: Judge Huggett File Number(s): 2021/00208682