Essex v R

[2013] NSWCCA 11

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Trevor Essex v R [2013] NSWCCA 11

Hearing dates:

13 November 2012

Decision date:

05 February 2013

Before:

McClellan CJ at CL [1]
Rothman J [2]
Bellew J [3]

Decision:

1. Leave to appeal granted;

2. Appeal allowed;

3. Quash the sentence imposed in respect of count (4) in the indictment, being the count pursuant to s. 66A(2) of the Crimes Act;

4. In lieu, sentence the applicant in respect of count (4) to a non-parole period of 8 years and 6 months imprisonment, to date from 9 February 2010 and to expire on 8 August 2018, with an additional term of 3 years 6 months imprisonment to date from 9 August 2018 and to expire on 8 February 2022, a total term of imprisonment of 12 years.

Catchwords:

APPEAL - criminal law - sexual offences - aggravated sexual intercourse of a child under 10 - intercourse constituted by insertion of hose into victim's vagina - victim aged 3 years at the time - where no evidence of offence being motivated by sexual gratification and no evidence of grooming - errors on the part of the sentencing judge in failing to have regard to such matters assessing objective seriousness of offence - further error on the part of the sentencing judge in concluding that the offending was aggravated because it occurred in the victim's home - sentence manifestly excessive

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:

Aldous v R [2012] NSWCCA 153
Butler v R [2012] NSWCCA 23
EK v R (2010) 208 A Crim R 157
Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 378
MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Comert [2004] NSWCCA 125
R v Dunn CCANSW 15 April 1992 unreported
R v King [2009] NSWCCA 117
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
R v Humphries [2004] NSWCCA 370
Tapai v R [2009] NSWCCA 246
Williams v R [2012] NSWCCA 172
Zrieka v R [2012] NSWCCA 44

Category:

Sentence

Parties:

Trevor Essex - Applicant
Crown - Respondent

Representation:

S Odgers SC and C Feiner - Applicant
J Dwyer - Respondent
Blair Criminal Lawyers - Applicant
S Kavanagh,Solicitor for Public Prosecutions (NSW) - Respondent

File Number(s):

2009/144211 2009/191931

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2011-08-16 00:00:00

Before:

Sorby DCJ

Judgment

1. McCLELLAN CJ at CL: I agree with Bellew J.

1. ROTHMAN J: I agree with Bellew J.

1. BELLEW J: On 16 February 2011 an indictment was presented against the applicant which contained six separate counts. The third of those counts was ultimately discontinued by the Director of Public Prosecutions, leaving the remaining five counts as follows:

(1)   between 9 November 2008 and 3 February 2009 at Penshurst in the State of New South Wales, having parental responsibility for KW, a child under the age of 16 years, that is of the age 3 years, he did intentionally, and without reasonable excuse, fail to provide her with the necessities of life, which said failure caused a danger of serious injury to her;

(2)   between 9 November 2008 and 3 February 2009 at Penshurst in the State of New South Wales, having parental responsibility for MC, a child under the age of 16 years that is of the age of 2 years, he did intentionally and without reasonable excuse fail to provide her with the necessities of life, which said failure caused a danger of serious injury to her;

(3)   ...

(4)   on 2 February 2009 at Penshurst in the State of New South Wales, he did have sexual intercourse with KW, a person then under the age of 10 years, that is of the age of 3 years, who was then under his authority, and at the time of the commission of the offence, he, did recklessly inflict actual bodily harm on her;

(5)   on 2 February 2009 at Penshurst in the State of New South Wales, he did recklessly cause grievous bodily harm to KW. ;

(6)   between 25 June and 7 July 2009 at Sydney in the State of New South Wales, he did an act, that is, did cause a letter written by him to be delivered to JC, intending thereby to pervert the course of justice.

1. Initially, the applicant entered a plea of not guilty to each count and the matter proceeded to a judge alone trial.

1. During the course of the trial, the applicant entered pleas of guilty to counts (1), (2) and (6), at which time the Director of Public Prosecutions discontinued count (3). As a result of those pleas of guilty, the only counts which were required to be determined at trial were counts (4) and (5), the latter being an alternative to the former.

1. As outlined in more detail below, the act of sexual intercourse which was the subject of count (4) consisted of the insertion, by the applicant, of a hose nozzle into the vagina of a three year old child. His Honour found the applicant guilty of that offence. In doing so, he accepted the evidence of the expert witnesses called by the Crown, each of whom expressed the opinion that the injury caused to the victim was consistent only with the introduction of a physical object into her vagina, in a manner which was not accidental. Each expert also expressed the opinion that the evidence of injury was consistent with the introduction of a hose nozzle into the victim's vagina. His Honour rejected the expert evidence called in the applicant's case at trial, which was to the effect that there was a reasonable possibility that the injury to the victim's vagina was caused by the flow of water coming from the hose.

1. In respect of each of counts (1) and (2) his Honour imposed concurrent fixed terms of imprisonment of 6 months, to date from 9 February 2009 and to conclude on 8 August 2009.

1. In respect of count (6), his Honour imposed a term of imprisonment of 2 years to date from 9 May 2009 and to conclude on 8 May 2011. His Honour described this as a "term of non-parole". Given the manner in which the sentences were structured, and despite the reference to "non-parole", I am left to conclude that his Honour intended to, and did, impose a fixed term of imprisonment in relation to this offence.

1. In respect of count (4), his Honour imposed a non-parole period of 11 years to date from 9 February 2010 and to conclude on 8 February 2021, with an additional term of 4 years and 6 months to date from 9 February 2021 and to conclude on 8 August 2025.

1. The total effective sentence was one of 16 years and 6 months imprisonment with a non-parole period of 12 years.

THE FACTS

1. The agreed facts in relation to those counts to which the applicant pleaded guilty were that in October 2008 the applicant (who was then 30 years of age) had met JC (who was then 22 years of age) on a chat line called "Hot Gossip". A week after meeting, the applicant and JC commenced an intimate relationship.

1. At that time, JC was living in a women's refuge with her two children, KW born 22 December 2005 ("the victim") and MC born 23 February 2007. In mid November 2008 the applicant asked a close friend if she would allow JC and her two children to stay with her, as they had nowhere else to live. The applicant's friend agreed, whereupon JC and her children moved into a spare room at the friend's premises. JC and her children later moved to rented premises, of which the applicant was named as the lessee. The applicant spent most nights with JC at those premises, assuming increased parental control of the two children.

1. KW's room at those premises contained a single bed and a mattress without sheets. It was cluttered with various items including a computer, a vacuum cleaner, tables, power tools and electric extension cords. MC's room contained two single beds, a table, and a chest of drawers sitting on top of it. The presence of the various items in each room posed a real risk of injury to the children. The applicant would regularly confine both KW and MC to those rooms without adequate sustenance or supervision. These facts formed the basis of the offending in counts (1) and (2).

1. After the applicant had been charged and taken into custody, JC met the applicant's mother from time to time. On one of those occasions, the applicant's mother gave JC a letter from the applicant, who wrote that the only thing that would save him would be if JC had heard certain words spoken by KW. The applicant wrote that if JC did not hear those words he would be facing a custodial sentence of some years, and that he hoped that JC "heard our precious little one say that or I am screwed". The applicant also suggested that his letter be kept hidden. JC had not heard such words said, and some weeks later she handed the letter to the police. These facts formed the basis of the offending in count (6).

1. In relation to the offence in count (4), being the offence under s 66A(2) of the Crimes Act of which his Honour found the applicant guilty following trial, the facts found by his Honour (which are not the subject of any challenge in this appeal) were as follows.

1. By 2 February 2009 the applicant was living in a defacto relationship with JC and her two children. He was in "loco parentis" with those children, and was involved in their feeding and discipline. The applicant also looked after the children, particularly the victim, in relation to toilet training. In that regard it was the applicant's practice, in the event that the victim soiled her pants, to take her into the backyard and clean her body with the use of a garden hose.

1. On the afternoon of 2 February 2009 JC was awoken by the applicant who came into her room and told her that the victim had "pooed her pants". JC went with the applicant to confirm that was the case, following which the applicant picked up the victim and carried her out to the backyard, so as to clean her with the hose.

1. JC did not go into the backyard. However, she did go into the sunroom of the premises where she heard what she described as "little cries". The victim at that time was naked and the applicant was hosing her down. The victim was standing with her back to the applicant and at that point the water from the spray of the hose was not forceful. The hose nozzle was about 12 inches from the victim as she was washed down.

1. From inside the house, JC then heard two loud-pitched screams. When she went outside, she saw the victim lying face down on the grass. The applicant carried the victim inside and put her in the sunroom. He told JC that the victim's vagina was bleeding.

1. After some delay, an ambulance was called and the victim was taken to the St George Hospital. She was then transferred to the Sydney Children's Hospital, where she was examined by two medical practitioners, Dr Dimitra Tzioumi, and Dr Keiren Moran.

1. Dr Tzioumi described a penetrating injury to the victim's genitalia, extending through the hymen and into the vagina. Dr Tzioumi said that whilst she could not say what had caused the injury, she was able to say that a soft object could not have done so. She said the injury was consistent with the infliction of blunt force trauma and expressed the view that the forceful penetration of a hose nozzle could have caused the injury.

1. Dr Moran gave evidence that the injury to the victim was likely to have been due to the forceful insertion of an object into the vagina. He said that he had only seen that sort of injury previously when a hard object, such as a dildo or a bottle, had been inserted into a vagina. He agreed that the forceful insertion of a hose nozzle could have been a possible cause of the injury.

1. His Honour ultimately found that the applicant, whilst hosing faecal matter from around the anal area of the victim, who was a child under his authority, thrust the nozzle of the hose into the victim's genitalia, realising that such an act might cause the victim actual bodily harm, which it did.

THE GROUNDS OF APPEAL

Ground 1 - His Honour erred by finding that the standard non-parole period for the offence under s 66A(2) was binding upon him and was not merely a guideline.

His Honour's reasons

1. In the course of his reasons (at AB 19) his Honour said:

"The circumstances of the s 66A(2) offence which I have found beyond reasonable doubt are objectively serious. The offence is viewed seriously by the community, the legislature having set a maximum sentence of life imprisonment for this type of offence with a standard non-parole period of 15 years which is binding upon me and not merely a guideline as the offender elected to go to trial which proceeded to a guilty verdict" (emphasis added).

Submissions of the parties

1. Senior counsel for the applicant concentrated upon his Honour's reference to the fact that the standard non-parole period was "not merely a guideline" and was "binding" upon him. He submitted that such references were indicative of his Honour having given primary, or perhaps even determinative, significance to the standard non-parole period in the sentencing exercise. This, it was submitted, was contrary to the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120.

1. The Crown submitted that when his Honour's reasons were read as a whole, no error had been demonstrated. The Crown pointed, in particular, to the fact that the regardless of what forms of expression his Honour may have used, he did not in fact impose the standard non-parole period, but imposed a non-parole period which was some 4 years less. That, the Crown submitted, indicated that there was no error, and further indicated that his Honour was aware of the fact that he retained a discretion.

Conclusion

1. At the time his Honour imposed the sentences on the applicant the decision in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 set out the approach to sentencing for offences for which a standard non-parole period was prescribed. That approach involved determining whether there were reasons for not imposing the standard non-parole period. Such determination required firstly, a consideration of the objective seriousness of the offence and secondly, a consideration of the aggravating and mitigating circumstances.

1. In Muldrock, the High Court considered the provisions of s 54B(2) of the Crimes (Sentencing Procedure) Act which is in the following terms:

54B Sentencing procedure

(2) When determining the sentence for the offence (not being an aggregate sentence), the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

1. In respect of this provision the Court concluded (at [26]):

"[26] Section 54B applies whenever a court imposes a sentence of imprisonment for a Div 1A offence. The provision must be read as a whole. It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word "unless". Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian vThe Queen (2005) 228 CLR 357; [2005] HCA 25 at 378; [49]:

"The judge identifies all the factors that are relevant to the sentence, discusses their significance, and then makes a value judgment as to what is the appropriate sentence given all the factors of the case" (emphasis added).

1. Merely demonstrating that a sentencing judge followed the decision in Way prior to the decision in Muldrock will not, of itself, be sufficient to demonstrate error (see Butler v R [2012] NSWCCA 23 at [26] per Davies J with whom Whealy JA and Rothman J agreed; see also Williams v R [2012] NSWCCA 172 at per Allsop P at [2]). Further, when considering whether or not such an error has been established, it necessary to consider the reasons of the sentencing judge as a whole (see Aldous v R [2012] NSWCCA 153 at [2] per Allsop P; Zrieka v R [2012] NSWCCA 44 at [43] per Johnson J.)

1. In the present case, the sentencing judge referred to the standard non-parole period as being "not merely a guideline". That reference followed upon his Honour's observation that the standard non-parole period was "binding" upon him. In my view, even when his Honour's reasons are read as a whole, the terms in which his Honour dealt with the issue of the standard non-parole period reflect error. In particular, his Honour's reference to the fact that the standard non-parole period was "not merely a guideline" is indicative of an approach which involved giving the standard non-parole period primary significance. Such approach is not saved by the fact that in the end result, the non-parole period imposed by his Honour was less than the prescribed standard.

1. It follows that in my view, this ground is made out. I have dealt with the question of whether some other sentence is warranted in law (Criminal Appeal Act 1912 s. 6(3)) when considering ground 3.

Ground 2 - His Honour erred in his assessment of the objective seriousness of the offence under s 66A(2).

His Honour's reasons

1. In considering this ground it is necessary to set out a number of passages from his Honour's reasons.

1. His Honour said (at AB 19):

"The facts of this offending by the offender, aged thirty years at the time, and the victim Kelsey, aged three years, reveal an act of wanton cruelty on the part of this offender when he inserted the hard plastic nozzle of the garden hose into Kelsey's vagina. The act was forceful and caused Kelsey internal injuries to her genitalia. Kelsey was under the care and authority of the offender at the time. Kelsey was in pain (she screamed out twice) and shock (she was pale and whimpering) immediately after the assault upon her by the offender. In my view, the circumstances of the offending as I have described the offence is not in a worst case category but is slightly above the mid range of objective seriousness for such offences."

1. His Honour then said (at AB 21):

"The relevant factors in mitigation and aggravation under s 21A of the Crimes (Sentencing Procedure) Act 1999, other than to which I have already referred are in relation to all four offences: the offending was not part of any planned or organised criminal activity. In aggravation, the offending in relation to the two s 43A(2) offences and the s 66A(2) offence are that they occurred in the victim's home. In relation to these three offences the victims in each were vulnerable because of their age."

1. His Honour then said (at AB 22):

"For the offence of aggravated sexual assault which I found to be slightly above the mid range of objective seriousness, there are, as there were with the other offences, some mitigating factors including the lack of major criminal record, his work record, his rehabilitation in custody to date, the lack of grooming leading up to the offence and the opportunistic nature of the offending. Deterrence, both specific and general, is an important consideration. Deterrence by way of severity of sentence is the only way that vulnerable children can be protected in cases such as this."

The submissions of the parties

1. In support of this ground, senior counsel for the applicant relied upon the fact that after his Honour had concluded that the offending was slightly above the mid range, he made reference to the lack of grooming leading up to the offence, along with what he described as the "opportunistic nature of the offending". It was submitted that both of those factors were relevant to an assessment of, and in fact mitigated, the objective seriousness of the offending. It was submitted that because the references to those factors came well after his Honour had expressed his conclusions as to objective seriousness, and even though he had referred to them as mitigating factors, his Honour had failed to have regard to them when assessing objective seriousness, and that this was an error.

1. Senior counsel for the applicant also relied on the fact that in circumstances where specific submissions had been made to his Honour that he should find that the offending was not motivated by a desire for sexual gratification, his reasons made no reference to that issue. It was pointed out that although the definition of "sexual intercourse" in s 61H of the Crimes Act did not contain any element of sexual gratification, the absence of such an element remained a matter which was relevant to the question of sentence generally, and the assessment of objective seriousness in particular. In this respect, this Court was provided with the written submissions of the parties on sentence. Having read those submissions, it is clear that counsel for the applicant at sentence had submitted to his Honour that although the vast majority of this type of offending was motivated by a desire for sexual gratification, there was no evidence of such motivation in the present case. His Honour was invited to find accordingly. In its written submissions on sentence, the Crown did not take issue with what had been put on behalf of the applicant in this respect.

1. In all of these circumstances, it was submitted on behalf of the applicant that the sentencing judge erred in his assessment of the objective seriousness of the offending and that properly evaluated, such offending fell in the lower half of the range.

1. The Crown submitted that the offence was obviously serious, and that such seriousness was not diminished by the fact that the penetration of the victim was other than penile. The Crown also submitted that absence of an aggravating feature such as motivation by a desire for sexual gratification did not, of itself, operate to reduce the objective seriousness of the offending. The Crown submitted that when assessing the objective seriousness of particular offending, care must be taken in considering features which, although common to such offending, might not be present in the case under consideration.

1. The Crown also pointed to the fact that the offending in the present case involved two circumstances of aggravation, namely:

(i)   that the victim was under the authority of the applicant at the time; and

(ii)   that the applicant intentionally or recklessly inflicted actual bodily harm upon the victim.

1. The Crown also relied on the fact that there was no challenge to the finding of the sentencing judge that at the time of doing the act which caused the injury, the applicant had a realisation that such an act might cause the victim actual bodily injury, which in fact it did. Such injury, it was submitted, was very serious, and required hospitalisation.

1. Finally, the Crown submitted that the fact that the victim was only 3 years old at the time was a significant aggravating feature and that this, of itself, justified the conclusion of the sentencing judge as to the level of objective seriousness.

Conclusion

1. I accept the Crown's submission that the fact that the penetration of the victim was other than penile did not of itself mean that the applicant's offending was not serious (see R v King [2009] NSWCCA 117 at [36]). I also accept that the injury occasioned to the victim was a relevant factor to consider (see King (supra) at [41]).

1. The victim's age was also a relevant matter to take into account, although I do not accept the Crown's submission that this factor alone justified the conclusion his Honour reached as regards objective seriousness (see MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22] per Kirby P, with whom Grove and Hislop JJ agreed; see also King (supra) at [37]). In a case such as this, the age of the victim, whilst obviously relevant, is one of a number of factors which are required to be taken into account.

1. However, his Honour's finding that there was no grooming by the applicant was a circumstance which was relevant to the assessment of the objective seriousness of the offending. On a fair reading of his Honour's reasons, and having regard to the manner in which those reasons were structured, it is apparent that although he ultimately referred to the absence of grooming, his Honour failed to have regard to that factor when assessing the objective seriousness. That, in my view, was an error.

1. The position is less clear in relation to his Honour's conclusion that the offending was (to use his Honour's description) "opportunistic". Given the rather unusual circumstances of the present case, and in particular given the unusual nature of the sexual intercourse, it is not completely clear what his Honour meant by that description. It may be the case that his Honour was intending to express a view that the offending was isolated. If that is the case, and for the reasons more fully set out below when considering ground 3, I do not consider that to be an appropriate description of the offending. If that is what his Honour was intending to convey by his use of the term "opportunistic" then in my view he erred, although in this instance the error was one which favoured the applicant.

1. I accept the Crown's submission that the fact that a specific feature may not be present in particular offending does not, of itself, necessarily lead to a conclusion that such offending is not serious. I also accept that in any assessment of the objective seriousness of particular offending, care must be taken when having regard to circumstances which, although common to the type of offending, are absent in the particular case which is being considered (see for example Tapai v R [2009] NSWCCA 246 at [18] per Spigelman CJ with whom McClellan CJ at CL and Grove J agreed).

1. However in the present case the question of whether the conduct of the applicant was motivated by a desire for sexual gratification was necessarily an important one. It has been recognised by this Court that in matters of this nature, the question of whether the offending was so motivated is a significant factor to be taken into account in any assessment of objective seriousness. In R v Dunn (CCA (NSW) 15 April 1992 unreported) Gleeson CJ said:

"The act of which the appellant was found guilty was, by definition, an act of sexual intercourse. In my view it is material, indeed most material, to take into account that the conduct in question was not done for any form of sexual gratification and was an act committed by this young offender in a fit of irritability and at a time when her capacity for judgment was impaired by the ingestion of drugs. Those are circumstances which I think were insufficiently taken into account by the learned sentencing judge."

1. In the present case, the issue of whether or not the applicant's offending was so motivated was specifically addressed in the submissions made to the sentencing judge on behalf of the applicant. The Crown's submissions took no issue with what had put on the applicant's behalf in this respect. Despite this, his Honour did not refer to this important issue in his reasons. In my view, his Honour should have had regard to the submission which was made on behalf of the applicant, and should have concluded that the offending was not motivated by a desire for sexual gratification. His Honour's failure to do so was an error.

1. For these reasons, this ground is made out.

1. In my view, taking into account all of the relevant factors which are more fully set out in my consideration of ground 3, a proper assessment of the offending was that it fell below the mid range of objective seriousness. I have considered whether any other sentence is warranted in law when considering ground 3.

Ground 3 - The sentence in relation to the offence under s. 66A(2) was manifestly excessive.

His Honour's reasons

1. I have already set out those parts of his Honour's reasons in which he arrived at his conclusions as to the objective seriousness of the offending. I have concluded that his Honour erred in that assessment.

1. To some extent, the submissions relied upon by both parties in respect of this ground overlapped with those which were considered made in respect of ground 2.

The submissions of the parties

1. In addition to relying upon those factors to which his Honour failed to have regard, and to which I have referred when considering ground 2, it was submitted on behalf of the applicant that it was relevant, in determining an appropriate sentence, to have regard to the fact that the applicant had no relevant criminal history, had worked industriously throughout his life, and had made some progress towards rehabilitation since being taken into custody.

1. In supplementary written submissions it was argued on behalf of the applicant that if error were found by this court, the applicant should be sentenced on the basis that he was "a man given total responsibility for two young children, was plainly out of his depth, and committed a spontaneous act out of frustration, without any sexual motivation, not intending to cause any serious injury to the victim". In this regard, the court was provided with a transcript of part of the evidence given by JC at the applicant's trial which was said to contain the evidentiary basis for such conclusions. That the applicant had been given total responsibility for the care of the victim was, at least impliedly, conceded by the Crown, who noted in its written submissions that JC appeared to have "abdicated responsibility for the care of (the victim) in favour of the applicant".

1. In relation to this ground, and in addition to those matters relied upon in respect of ground 2, the Crown emphasised the age of the victim, the injuries which were occasioned to her, and the need for general and specific deterrence. The Crown also emphasised the aggravating features which were present in the offending and to which I referred in my consideration of ground 2.

1. Finally, the Crown relied upon sentencing statistics which, it was submitted, demonstrated that the sentence was within the permissible range.

Conclusion

1. The applicant's conduct which formed the basis of count (4) was cruel and reckless, and caused significant injury. It appears to have been motivated by a desire to administer some form of discipline to the victim. That form of discipline was both violent, and entirely inappropriate. Further, as the Crown has pointed out, no issue has been taken with his Honour's finding that the actions of the applicant giving rise to count (4) were carried out with a realisation that actual bodily harm might be caused to the victim, and that harm was, in fact, occasioned.

1. The offending in respect of count (4) cannot, in my view, be separated from the entirety of the applicant's offending, so as to be properly regarded as isolated. The offending in counts (1) and (2) involved the applicant housing KW and her sister in rooms which were hazardous to their well being. That circumstance was then compounded by the applicant restricting both children to those rooms without proper sustenance. That was not simply a matter of neglect. It was cruel and uncaring conduct exhibited towards two very young children.

1. The offending in count (4) was, of itself, equally cruel. The actions of the applicant were deliberate and involved the infliction of a substantial physical injury to the victim. The nature and extent of that injury, which I have previously described is, in my view, consistent only with considerable, and deliberate, force having been applied to the body of the victim. Although, for the reasons I have outlined, the victim's age is not the only consideration, the fact that she was only 3 years old at the time is nevertheless significant.

1. In summary, the offending in counts (1), (2) and (4) exhibited a continuing course of serious neglect, culminating in violence being inflicted upon the victim, causing her serious injury. That course of conduct was compounded by the applicant's actions in writing a letter to JC, the effect of which was to urge her to give evidence which was false, in an attempt to evade punishment for his actions.

1. In the course of oral submissions, the Court was taken at some length to the decision in XY v R [2007] NSWCCA 72 which, it was submitted, demonstrated the manifest excess of the sentence imposed upon the present applicant in respect of the offence in count (4). Necessarily the facts and circumstances of offending differ from case to case. There is therefore a need for caution when seeking to draw comparisons between one case and another. However, it is noteworthy that in XY McClellan CJ at CL (at [48]) emphasised the significance of the finding of the sentencing judge in that case that the applicant had not been motivated by a desire for sexual gratification. For the reasons I have previously observed, that is a finding which ought to have been made in favour of the applicant in the present case.

1. There was no evidence to suggest that the applicant's offending in the present case was planned. Rather, it appears to have been spontaneous. Further, and whilst the offending was not, for the reasons to which I have already referred, isolated, it was committed by a person who was relatively young, who had little criminal history, and who, at least in terms of child care responsibilities, was inexperienced and immature (see XY at [45]).

1. None of the factual findings of the sentencing judge have been challenged in this appeal. The applicant relied primarily upon matters which, it was submitted, his Honour should have taken into account but did not, along with the various other mitigating factors to which I have referred. It was submitted that a consideration of all of these matters leads to a conclusion that the sentence imposed in respect of count (4) was manifestly excessive.

1. For the reasons set out in my consideration of ground 2, there were two significant matters to which his Honour should have had regard when assessing the objective seriousness of the offending. Both of those matters were favourable to the applicant. His Honour's failure to have regard to them led to an assessment of the objective seriousness of the offending which was higher than was warranted.

1. I accept the submission made on behalf of the applicant that when those matters, along with the other subjective circumstances to which I have referred, are taken into account, they provide a more accurate picture of the entire context in which the offending occurred. In my view, a consideration of all of these factors leads to the conclusion that the sentence imposed upon the applicant in respect of count (4) was manifestly excessive.

1. For these reasons, this ground has also been made out.

Ground 4 - The sentencing judge erred in regarding the fact that the offence occurred in the victim's home was aggravating.

His Honour's reasons

1. In the course of his reasons (at AB 21) the sentencing judge said:

"The relevant factors in mitigation and aggravation under s 21A of the Crimes (Sentencing Procedure) Act 1999, other than those to which I have already referred, are in relation to all four offences: the offending was not part of any planned or organised criminal activity. In aggravation, the offending in relation to the two s 43A(2) offences and the s 66A(2) offence are that they occurred in the victim's home. In relation to these three offences the victim's in each were vulnerable because of their age."

The submissions of the parties

1. It was submitted on behalf of the applicant that in finding that the offending was aggravated by the fact that it occurred in the victim's home, his Honour erred.

1. The Crown submitted that although it appeared that his Honour appeared to have fallen into error by using the provisions of s 21A as something in the nature of a check list, any such error was both technical and minor, and was not one that vitiated the sentence.

Conclusion

1. It is an aggravating circumstance where an offender intrudes into the home of a victim, but not where the offender and the complainant reside together. This was the position at common law and remains the position having regard to the provisions of s 21A (see EK v The Queen (2010) 208 A Crim R 157 at [79] per RA Hulme J with whom McClellan CJ at CL and Simpson J agreed; see also R v Comert [2004] NSWCCA 125).

1. It follows that his Honour erred in concluding that the fact that the offence occurred in the victim's home was an aggravating factor.

1. It should be noted that having appeared to accept in written submissions that the sentencing judge had fallen into error in this respect, the Crown at the hearing of the appeal relied on observations made by Barr J in Regina v Humphries [2004] NSWCCA 370 at [27], apparently in support of a submission that there was in fact no error.

1. It is sufficient, for present purposes, to note that the reasons of the sentencing judge in Humphries did not, unlike those of the sentencing judge in the present case, include a specific conclusion of the kind which has led to error in the present case being made out. On that basis alone the cases are distinguishable.

1. I am satisfied that this ground is made out. Having regard to the conclusion I have reached in respect of ground 3, I do not need to take this issue any further.

CONCLUSION

1. I note that in sentencing the applicant in respect of count (4) his Honour adopted a statutory ratio between the non parole period and the total term of approximately 70%. With this mind, and in view of the foregoing, I propose the following orders:

(i) leave to appeal granted;

(ii) appeal allowed;

(iii) quash the sentence imposed in respect of count (4) in the indictment, being the count pursuant to s. 66A(2) of the Crimes Act;

(iv) in lieu, sentence the applicant in respect of count (4) to a non - parole period of 8 years and 6 months imprisonment, to date from 9 February 2010 and to expire on 8 August 2018, with an additional term of 3 years and 6 months imprisonment to date from 9 August 2018 and to expire on 8 February 2022.

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Decision last updated: 06 February 2013