FL v R

[2020] NSWCCA 114

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	FL v R [2020] NSWCCA 114
Hearing dates:	15 April 2020
Date of orders:	03 June 2020
Decision date:	03 June 2020
Before:	R A Hulme J at [1] Hamill J at [2] Wilson J at [3]
Decision:	(1) Leave to appeal on ground one refused. (2) Leave to appeal on ground two granted. (3) Appeal dismissed.
Catchwords:	CRIME – appeals – appeal against sentence – assessment of objective gravity – whether error in “global assessment” – question of whether assessment must be expressed by position in a range – requirement of identifying features relevant to assessment of objective gravity – question of whether sentence manifestly excessive – utility of sentencing statistics in determining whether a sentence is manifestly excessive – utility of comparing one case to another to discern error
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	AGF v R [2016] NSWCCA 236 Barbaro v The Queen; Zirilli v The Queen (2014) [2014] HCA 2; 305 ALR 323 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DG v R [2017] NSWCCA 139 DJM v R [2013] NSWCCA 10 Erazo v R [2016] NSWCCA 139 GW v R [2018] NSWCCA 79 MRM v R [2015] NSWCCA 195 MRW v R [2011] NSWCCA 260 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 PK v R [2012] NSWCCA 263 R v DAJ [2012] NSWCCA 143 R v Dodd (1991) 57 A Crim R 349 R v Ellis (1986) 6 NSWLR 603 R v GWM [2012] NSWCCA 240 R v XX [2017] NSWCCA 90 RC v R; R v RC [2020] NSWCCA 76 RH v R [2019] NSWCCA 64 RL v R [2018] NSWCCA 74 RJB v R [2015] NSWCCA 93 RSW v R [2012] NSWCCA 13 Sabbah v R (Cth) [2020] NSWCCA 89 ST v R [2017] NSWCCA 245 TP v R [2018] NSWCCA 140 Wright v R [2019] NSWCCA 134
Texts Cited:	None
Category:	Principal judgment
Parties:	FL (Applicant) The Crown (Respondent)
Representation:	Counsel: S Healy (Applicant) G Newton (Respondent)   Solicitors: Ryan & Payten (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/00161856
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Common Law Date of Decision: 17 August 2018 Before: O’Rourke SC DCJ File Number(s): 2017/00161856

Judgment

1. R A HULME J: I agree with Wilson J.

2. HAMILL J: I agree with the orders proposed by Wilson J and with her Honour’s reasons. Judge O’Rourke SC’s explanation of the approach she took to an assessment of the objective gravity of the offending was orthodox and in accordance with the High Court’s judgment in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. The sentence imposed on the applicant was very severe particularly when appropriate weight is given to his pleas of guilty and lack of any relevant criminal history. However, the offending against his 15-16 year old step-daughter represented repeated sexual abuse of a most serious kind. The diligence of his legal representatives in collecting an array of previous sentencing decisions in support of the second ground of appeal cannot be denied. However, Wilson J’s careful analysis of those cases and the sentencing statistics demonstrates that the sentence, while toward the top of the range that one might have expected, cannot fairly be described as manifestly outside of that range or so severe that this Court can find on current sentencing patterns that it is plainly wrong or unjust.

3. WILSON J: On 17 August 2018 the applicant, FL, was convicted and sentenced in the District Court of New South Wales in relation to four charges of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation for two of the charges was the age of the complainant, she being under the age of 16 years; for the remaining two offences, the aggravating feature was that the complainant was under the applicant’s authority. The complainant in each instance was the applicant’s step-daughter.

4. The applicant asked the sentencing court to take into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a further six offences. Each was a charge of aggravated indecent assault contrary to either s 61M(1) (one count), or s 61M(2) of the Crimes Act (five counts). The complainant was, again, the applicant’s step-daughter.

5. An offence contrary to s 61J(1) carries a maximum penalty of 20 years imprisonment; a standard non-parole period (“SNPP”) of 10 years applies. An offence contrary to s 61M(1) carries a maximum penalty of 7 years imprisonment, with a SNPP of 5 years attaching to it. [1] A maximum penalty of 10 years imprisonment applies to an offence contrary to s 61M(2), with a SNPP of 8 years.

   1. The sentencing judge did not, in her recitation of the applicable penalties, distinguish between the offence contrary to s 61M(1) and those contrary to s 61M(2), but no complaint is made about that and, in the circumstances of this matter, it may be properly regarded as a slip upon which nothing turns.

6. For the four charges, and taking into account the six offences on two Form 1 documents, her Honour Judge O’Rourke SC imposed an aggregate sentence of imprisonment of 14 years and 6 months upon the applicant. The sentence commenced on 30 May 2017 and expires on 29 November 2031. A non-parole period (“NPP”) of 10 years was fixed, which will expire on 29 May 2027. Had individual sentences been imposed, her Honour indicated that they would have been as follows:

Sequence	Charge	Indicative Sentence
5	Aggravated Sexual Assault	6 years imprisonment with a NPP of 4 years
8	Aggravated Sexual Assault Form: 3 counts of Aggravated Indecent Assault	8 years imprisonment with a NPP of 5 years and 6 months
10	Aggravated Sexual Assault Form: 3 counts of Aggravated Indecent Assault	8 years imprisonment with a NPP of 5 years and 6 months
11	Aggravated Sexual Assault	7 years imprisonment with a NPP of 4 years and 6 months

7. The applicant seeks leave to appeal against the sentence imposed upon him, advancing two proposed grounds of appeal:

1. “The learned sentencing judge erred in the assessment of objective seriousness for each offence. In particular, her Honour erred by assessing the objective seriousness of ‘the offending’ globally;

2. The sentence imposed is manifestly excessive”.

The Proceedings in the District Court

8. On 25 October 2017, the applicant entered pleas of guilty before the Local Court to four s 61J(1) offences. He was committed for sentence and appeared before the District Court for that purpose on 22 June 2018, on which date he adhered to his pleas of guilty.

9. The Crown case on sentence consisted of an agreed statement of facts, the applicant’s criminal and custodial histories, and a victim impact statement prepared by the complainant. Two Form 1 documents containing three counts each of aggravated indecent assault were provided to the sentencing court, and the applicant acknowledged his guilt of those offences, asking the Court to take those crimes into account when passing sentence for the relevant principal offences.

10. The facts of the offences agreed by the applicant and found by the sentencing court are, in summary form, as follows.

The Facts

11. The applicant and the complainant’s mother commenced a relationship about 10 years prior to the commission of the offences, when the complainant was 5 years of age. She had grown up referring to him as “Dad”. After a period of separation from the complainant’s mother, in September 2016 the applicant moved in to the house where the complainant and her mother lived, and they lived together as a family.

12. The first sexual approach made by the applicant to his step-daughter occurred on 23 February 2017. The complainant was aged 15 years at the time. Whilst sitting with his step-daughter on a lounge watching television, the applicant pulled the complainant towards him and, despite her resistance, kissed her on the lips, pushing his tongue into her mouth. The complainant pushed away from him and ran into another room where her mother was working. She did not say anything to her mother, the applicant having told her not to, as her mother would be “really hurt”. This s 61M(2) offence is sequence 1, and was taken into account against sequence 8.

13. After each subsequent assault, the applicant reminded his step-daughter that her mother would be hurt if she told her about what had happened.

14. On the evening of 25 February 2017, when the complainant was standing beside the applicant to show him something, he squeezed her buttocks. This s 61M(2) offence was sequence 3, also taken into account against sequence 8.

15. The following day, 26 February, was the applicant’s birthday. Standing at his bedroom door that morning, the complainant wished him a happy birthday. He called to her to come in, telling her that he had to say something. When she approached the bed where he was laying, the applicant grabbed the complainant and pulled her down on top of him, holding her there by the hips. He tried to kiss her and then, despite her pleas to him to stop – “Dad, what are you doing … stop, stop” – lifted her shirt and bra and sucked both of the complainant’s breasts. He stopped only when he heard a family member moving about the house. This s 61M(2) offence was sequence 4, and was the last of the three offences taken into account against sequence 8.

16. That night there was a celebration for the applicant’s birthday at the family home. Afterwards the complainant’s mother drove a friend home, leaving the complainant and her 5 year old cousin alone with the applicant. The applicant approached the complainant as she sat with her young cousin watching television and, grabbing her by the arm, pulled her into another room. He pushed the complainant to her knees on the floor and exposed his erect penis. Taking the complainant by the back of the head he tried to force his penis into her mouth. The complainant kept her mouth shut, and there was a struggle for some minutes.

17. When the complainant was able to stand, the offender removed her clothes, asking her if she was a virgin (the answer being affirmative) and if she had feelings for him. Telling her “it will be quick”, he thrust his penis into his step-daughter’s vagina, continuing to do so for some time. She called out to her young cousin and, when the child came into the room, the complainant was able to grab her clothes and leave. This s 61J(1) offence is sequence 5.

18. A few weeks later, the applicant drove his step-daughter to her first shift at a job she had obtained. He stopped in an empty car park, leading the complainant to beg him “don’t do it please”. He grabbed her chin and kissed her very hard. She was able to leave the car and go to work. This s 61M(2) offence was sequence 6, and was taken into account against sequence 10.

19. A similar act occurred on 15 March 2017 at the complainant’s home, when the applicant took hold of her face and kissed her on the mouth, trying to put his tongue into her mouth. This s 61M(2) offence was sequence 7, and was taken into account against sequence 10.

20. A few days after this the complainant left the bathroom wrapped in a towel, after having a shower. On seeing the applicant emerge from his bedroom, the complainant went into her bedroom and attempted to close the door. The applicant entered the room and closed the door behind him. Taking hold of his step-daughter by the hips, he kissed her and pushed her onto her bed, where he pulled her legs apart and thrust his penis inside her vagina, despite her repeated pleas to him not to. He ejaculated inside his step-daughter’s vagina. This s 61J(1) offence was sequence 8, against which sequences 1, 3, and 4 were taken into account on sentence.

21. The complainant turned 16, although remaining under the applicant’s authority.

22. In early April 2017, the applicant forced his way into his step-daughter’s bedroom against her attempts to hold the door closed and kissed her on the mouth. He left when his wife approached. This s 61M(1) offence was sequence 9, and was taken into account against sequence 10.

23. Some days later the complainant was in her bedroom when the applicant pushed his way into the room, asking her why she kept pushing him away. When she responded that she was tired and wanted to sleep, the applicant said she could sleep “after this”. He then pushed her onto her bed and, removing his shorts and underwear, tried to force his erect penis into his step-daughter’s mouth. When she resisted by turning her head and keeping her mouth closed, he pushed her on her back and took her lower clothing off. Raising her legs over his shoulders, he began to thrust his penis into her vagina, telling her repeatedly that he loved her and demanding that she say it back. The applicant ejaculated inside his step-daughter. He then left the bedroom. This s 61J(1) offence was sequence 10, against which sequences 6, 7, and 9 were taken into account on sentence.

24. Only days later the complainant woke up to find the applicant lying beside her, naked, in her bed. He began kissing her and rubbing his leg against her vagina. Although she told him repeatedly to stop, he continued to rub against her, before pulling her underwear off and pushing his finger inside her vagina. He then pushed her knees apart and thrust his penis into his step-daughter’s vagina, continuing until he ejaculated. He then left the room. This s 61J(1) offence was sequence 11.

25. In late April, the complainant told some friends about the abuse, and then her mother.

26. Shortly afterwards, on 3 May 2017, the applicant went with the complainant’s mother to a police station and, having asked to speak to a police officer, told the officer that he had been having “a relationship” with his step-daughter behind his wife’s back for a few months, and there had been kissing and touching. He said that he had never had sexual intercourse with her.

27. The officer asked the complainant’s mother to leave the interview room, after which the applicant said that from about February 2017 his step-daughter had started to become very affectionate with him and to cuddle up against him. On one occasion they had kissed. Following that, there was an occasion when, his wife not being at home, his step-daughter had taken off her clothes and they had lain together and kissed. He continued to deny ever having had sexual intercourse with her, saying that he knew it was wrong to do so. He also denied ever having digitally penetrated his step-daughter. The applicant did, however, say that his step-daughter had performed fellatio on him on one occasion and, when he lay with her naked against him, he ejaculated. He denied having ever forced his step-daughter to do anything, and said “it was both of them”.

28. On 25 May 2017, a statement was obtained by police from the complainant. When the applicant was arrested on 30 May 2017 he was interviewed, but gave the answer “no comment” to all questions put to him.

The Victim Impact Statement

29. In her victim impact statement, the complainant wrote movingly of the pain and anguish her step-father’s abuse had caused her. Feeling that she could not tell her mother both because the applicant made her mother happy, and because her own relationship with her would be damaged by the disclosure, the complainant was left feeling bereft and lonely, and was driven to contemplate suicide.

The Applicant’s Criminal and Custodial Histories

30. The applicant has criminal histories in both New South Wales and Queensland. In this State, he has convictions for driving offences, the most serious of which is an offence of driving with the mid-range prescribed concentration of alcohol in his blood, from October 2014. In Queensland, the applicant was found to have committed an offence of stealing, although no conviction was recorded. He was fined. There was nothing of note in the custodial history other than the date of entry into the custody of Corrective Services, being 1 June 2017.

The Applicant’s Case on Sentence

31. The applicant did not give evidence on sentence.

32. He relied upon a report from Mr Borkowski, forensic psychologist, who saw the applicant with a view to preparing a report to be tendered on sentence.

33. Mr Borkowski saw the applicant over a three hour period in February 2018. He presented as a 36 year old Samoan man with no apparent thought disorder or perceptual disturbance, who became tearful when discussing his current circumstances.

34. The applicant reported a childhood in Samoa as an adopted son in a family of eight children. In his early years, there were some tensions and occasional violence from male relatives of his adopted parents, who did not treat him as part of the biological family, but his mother always endeavoured to shield him. He idolised his father who worked hard and was a heavily involved member of his faith. The applicant got on well with his adopted siblings. His adoptive family all live in Samoa, although his father died in 2016.

35. The applicant attended a boarding school in Samoa where he was an average student academically, but excelled at sports. Although he initially suffered some bullying, he came to be well respected and made a number of lasting friends through school. He briefly attended university in New Zealand, but withdrew to obtain work to provide for his family.

36. The applicant searched for and located his biological parents, having met his mother when he was 19, and spoken by telephone with his father. Each of his parents have children, and he has tried to establish and maintain relationships with his half-siblings.

37. The applicant moved to New Zealand when he was 19 years old, re-locating to Australia after about 8 years there. He initially lived in Queensland, moving to Sydney thereafter. The applicant is involved with sport and believes that he is well regarded by others. There is no family history of criminality or anti-social activity, and the applicant was not sexually abused as a child.

38. The applicant gave Mr Borkowski a history of establishing his first long-term relationship soon after he moved to New Zealand, with him and his partner having four children during the course of their relationship. An extra-marital affair he had during that relationship resulted in a fifth child. All of the applicant’s children, [now] aged between about 14 and 19 years, live in New Zealand. He tries to maintain contact and provide financial support when possible.

39. The applicant met the complainant’s mother in New Zealand and they married there. They later divorced, and the applicant returned to Samoa where he married again. That relationship broke down and, upon the applicant returning to Australia, he resumed his relationship with the complainant’s mother.

40. The applicant said that he has worked throughout his adult life, as a factory hand, in security, and most recently as a forklift driver.

41. His health is good and he has no history of psychological disturbance, although he acknowledged drinking heavily when confronted with any difficult emotional issue, leading to a conclusion that he has an alcohol-use disorder.

42. As to the commission of these offences, the applicant told Mr Borkowski that, when he reconciled with the complainant’s mother, he saw the complainant differently, as she was no longer “a little girl”. He described having a “sexual relationship” with her which, because of his regularly intoxicated state and his belief that the complainant did not try to evade him, he had not regarded as harmful to her. This perception permitted the applicant to justify to himself his conduct towards his step-daughter. He acknowledged to Mr Borkowski that he had broken the law and had to accept the consequences, saying that he was sorry for his actions and had “let people down with [his] actions”. Mr Borkowski thought that the applicant’s expressed remorse was genuine.

43. Mr Borkowski noted that:

“There is an indication of hypersexuality or sexual self-regulation …, in the form of frequent infidelity, which [the applicant] said was due to ‘selfishness’ …”

44. Having administered various psychometric tests to the applicant, Mr Borkowski observed that the applicant endorsed a number of symptoms related to depression and anxiety, symptoms the applicant attributed to his incarceration and inability to support his family. Symptoms of stress and worry were explained by the applicant as linked to his fears for his safety in custody and the potential impact his current circumstances may have on his future.

45. Risk assessment tools were also administered, with Mr Borkowski opining that the applicant presented a low risk of sexual recidivism. His overall conclusions were that the applicant demonstrates distorted beliefs around sex and sexual relationships, and appears to use sex as a means of enhancing his self-confidence. His pattern of alcohol use is consistent with a disorder in that regard. He would benefit from appropriate therapy through a sex offenders’ programme.

46. Although the applicant did not expose himself to cross-examination, he wrote a letter to the sentencing court in which he said that he was “extremely, extremely sorry”, accepted responsibility for his actions, and offered an apology to “everyone”. He promised to do everything he could “to help [himself] out so I can become a better man, dad, and husband”. The applicant said that he had “let myself down, my reputation and people around me”.

47. A letter from a lay preacher at the applicant’s church described him as a good and hardworking man. The author, who believed that the applicant was being sentenced for indecently assaulting a minor, noted that the applicant was remorseful, and had himself reported his offences to police and pleaded guilty to the charges. A prison chaplain also provided a character testimonial in which it was observed that the applicant appeared to be remorseful for the pain caused to his family, friends, and community.

The Remarks of the Sentencing Judge

48. Noting the history of the matter, the sentencing judge determined that a discount of 25% on the sentences that would otherwise be imposed would be allowed to reflect the utilitarian value of the pleas, entered at an early stage. She observed that there would be an increase to the sentences imposed with respect to sequences 8 and 10, to reflect the matters before the court on two Form 1 documents, and the need to give weight to personal deterrence and the community’s entitlement to exact retribution for the Form 1 offences.

49. Having set out the facts of the offending conduct from the agreed statement, her Honour turned to an assessment of the objective gravity of the offences. She considered each of the charges in turn, noting the particular features of each relevant to its gravity. Having done so, the sentencing judge observed that “the offending” was very serious, “and well within the mid-range of offending for offences of this type”.

50. She referred to the features of the offending that aggravated the crimes, including that, for all but one offence, the crimes had been committed in the complainant’s home, and by a person who occupied a position of trust in her life. Her Honour took the latter feature into account bearing in mind that two of the offences charged “in authority” as the feature of aggravation, in accordance with what was said in MRW v R [2011] NSWCCA 260 at [77]-[78], and R v XX [2017] NSWCCA 90 at [66]–[67].

51. Her Honour noted that the damage done to the complainant was likely to be of long duration.

52. The applicant’s case was then considered by her Honour, with information as to his personal circumstances principally derived from the psychological report. She was prepared to give the applicant the benefit of his generally good character as a mitigating feature, but could not accept the applicant’s submission that he was entitled to be treated as a person of a deprived background, consistent with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The applicant did not challenge that finding before this Court.

53. Despite the complete absence of any mention of his victim by the applicant when expressing remorse, her Honour was prepared to accept that he was remorseful, even if equally distressed at the impact of his offences on himself and his family. She was also prepared to accept that he posed a low risk of reoffending, assessing his prospects of rehabilitation as fair to good.

54. Her Honour was cognisant of the need to give weight to both specific and general deterrence, with a greater emphasis on the latter. She also had regard to the principle of totality, allowing for a degree of accumulation of sentence.

55. Making a finding of special circumstances in the applicant’s favour, her Honour imposed the aggregate sentence referred to earlier.

The Proposed Appeal

Ground One: “The learned sentencing judge erred in the assessment of objective seriousness for each offence. In particular, her Honour erred by assessing the objective seriousness of ‘the offending’ globally”

56. By this proposed ground, the applicant complains that her Honour failed to make an assessment of the gravity of each of the offences individually but, rather, assessed the crimes in a global way, finding the offences taken together fell well within the mid-range. As he acknowledged in his written submissions, this complaint is based upon a single sentence in her Honour’s remarks on sentence:

“Ultimately, the Court finds the offending to be very serious and well within the mid-range for offences of this type.”

57. The applicant contends that this single sentence constitutes the only finding made by the court about the four offences for sentence, or any of those taken into account against sequences 8 or 10. He submits that this “error” left “opaque” whether or not the sentencing judge erroneously had regard to the gravity of the Form 1 offences when assessing the gravity of the counts against which those charges were to be taken into account.

58. There is no question that a sentencing court is obliged to make an assessment of the objective gravity of each offence for which an offender is to be sentenced. That process is a central part of the sentencing exercise, necessary to ensure that an adequate sentence is imposed upon an offender in compliance with s 3A(a) of the Crimes Sentencing Procedure Act 1999 (NSW); and to observe the principle of proportionality, stated in R v Dodd (1991) 57 A Crim R 349 at 354 in this way:

“… there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity …”.

59. What is not required is for the sentencing court to express that assessment by reference to a formula, or a percentage, or by classifying the objective seriousness of an offence. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the High Court observed at [29] that:

“A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to ‘mak[ing] a record of its reasons for increasing or reducing the standard nonparole period’ is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed.”

60. What is important is to fully identify the “facts, matters and circumstances” which bear on the assessment of the gravity of the crimes. It is not necessary to express the conclusion reached by reference to a position within a range, or by resorting to mathematical terminology: PK v R [2012] NSWCCA 263 at [24]–[27]; RC v R; R v RC [2020] NSWCCA 76 at [243]–[244].

61. That is precisely what her Honour did in this matter when she considered each of the four offences for sentence, identifying those matters which were relevant to the gravity of each crime individually. She prefaced her recitation of those features by (correctly) observing:

“The assessment of where the offence lies in the range of offending of its type is to be made with reference to all of the facts and circumstances of the offence […]. Circumstances of relevance here in that assessment include that each offence occurred on separate days and all occurred in the victim’s home, and at all times the victim was told not to tell anyone and not to tell her mother because it would hurt her.”

62. Her Honour went on to consider each offence in turn, identifying the facts, matters and circumstances which established its objective gravity.

63. With respect to sequence 5, the sentencing judge identified the complainant’s age, she being 15 years old, and the great disparity between the applicant’s age (36) and his victim’s; the fact that the offence occurred in her home; that it occurred at a time when she and a 5 year old cousin had been left alone with the applicant; the nature of the relationship between the applicant and the complainant, she referring to him and regarding him as her “dad”; that she was physically pulled away from what she was doing by the applicant so that he could sexually assault her; that the charged offence was preceded by a period of minutes when the applicant tried to force his penis into the complainant’s mouth; that the applicant emotionally manipulated the complainant; that he thrust his penis inside her vagina even after she told him that she was a virgin; that intercourse was not of lengthy duration; and that the only reason it ended was because the 5 year old cousin entered the room after the complainant called out to her.

64. For sequence 8, the sentencing judge referred (as with sequence 5) to the applicant’s age and that of his victim; to the fact that the offence occurred in the complainant’s bedroom; that the applicant had entered the bedroom despite the complainant’s attempt to close the door; that he pushed her onto her bed; that he pulled her legs apart despite her repeated pleas of “please don’t”; that he laughed when the complainant pleaded with him; that he pushed his penis into her vagina and had intercourse for some minutes; that no form of contraception was used; and that the applicant ejaculated inside his victim’s vagina.

65. Her Honour did not refer to the three offences to be taken into account against sequence 8 when enumerating those features relevant to its gravity.

66. For sequence 10, her Honour identified a number of relevant features, being that the complainant was aged 16 and the applicant 20 years older; that the offence occurred inside the complainant’s bedroom; that the applicant had forced his way into the bedroom; that he pushed her onto her bed; that he removed his own clothes; that, prior to the offence, the applicant forcibly tried to place his penis into the complainant’s mouth; that he then pushed the complainant onto her back and removed her lower clothing; that he thrust his penis repeatedly inside her vagina; that he ejaculated inside her vagina; that no contraception was used; and that a significant degree of emotional manipulation was employed.

67. As with sequence 8, the sentencing judge made no mention of the three offences to be taken into account when imposing sentence for this offence when identifying the features relevant to the gravity of the crime.

68. With respect to the last of the offences, sequence 11, her Honour pointed to the respective ages of the complainant and applicant, 16 and 36 years respectively; that the applicant had gotten into her bed with her when she was asleep; when she was drowsy, having awoken from sleep, the applicant began to kiss her and touch her vagina; that he penetrated her digitally; that he removed her pants; that he pulled her legs apart to facilitate the penile-vaginal intercourse that followed; that he ejaculated into the complainant’s vagina; and that no contraception was used.

69. Her Honour concluded that each of the offences was very serious. It was in the context of referring to the submissions of the parties as to the seriousness of the offences that she said:

“The Crown submits that the offending falls within the mid-range of objective seriousness and the offender submits somewhat below the mid-range. Ultimately, the Court finds the offending to be very serious and well within the mid-range for offences of this type.”

70. Bearing in mind the careful exposition of the features that established the very serious nature of the applicant’s individual crimes, and which preceded this single sentence, this statement cannot and does not establish error. As an overall summary in response to the submissions of the parties as to objective gravity, it was entirely open to her Honour to observe that these “very serious” crimes were “well within the mid-range”, a categorisation readily attributed to each.

71. The position each offence occupied relative to each other within the mid-range was clearly reflected in the individual sentences indicated by her Honour.

72. There is nothing in her Honour’s remarks, in the individual sentences that would have been imposed had sentence not proceeded by way of an aggregate sentence, or in the aggregate sentence itself, that supports the applicant’s speculation that the Form 1 offences were taken into account in an inappropriate way.

73. This ground has no merit and I would not grant leave to advance it.

Ground Two: The sentence imposed is manifestly excessive

74. The applicant points to both the sentencing statistics held relevant to offences contrary to s 61J(1) and to what are said to be cases with comparable features to argue that the sentence imposed upon him is manifestly excessive.

75. The sentencing statistics for the period 2011 to 2018 demonstrate, on the applicant’s analysis, that for all offenders sentenced to a term of imprisonment for a principal offence or offences contrary to s 61J(1), the shortest effective term of imprisonment was one of 18 months, and the longest effective term was 48 years. Roughly 10% of offenders received a longer overall sentence than did the applicant, with the balance receiving a shorter term, with respect to both head sentence and NPP. It is argued that this points to an excessive sentence.

76. The applicant has selected 15 “comparable” cases which, it is submitted, demonstrate that the sentence imposed upon him is so far outside “the range” as to be unfair and unjust. Seven of those cases were provided to the sentencing court; a further eight have been added to the analysis on appeal.

77. The utility of the applicant’s approach in seeking to establish manifest excess by reference to statistics and a selection of similar cases has been regularly, and repeatedly, decried by this Court as inapposite to the task. Recently, in Sabbah v R (Cth) [2020] NSWCCA 89, a similar argument was advanced, with reliance placed on statistics and “comparable cases” to argue that the sentence imposed was manifestly excessive. With the agreement of McCallum JA and Cavanagh J I said, at [132]-[135]:

“This Court has frequently emphasised the lack of utility in relying on a series of cases, or sentencing statistics, or both, to contend that a particular range of sentence can be determined and, in turn, that the impugned sentence falls outside it and is manifestly excessive. The point has been made in, to select a very few from a very long list, Vandeventer v R [2013] NSWCCA 33 at [45] – [46]; Dang v R [2014] NSWCCA 47 at [55]; Pham v R [2014] NSWCCA 115 at [57]; MLP v R [2014] NSWCCA 183 at [41] – [44]; Ngatamariki v R [2016] NSWCCA 155 at [65]; and Naveed v R [2019] NSWCCA 149 at [63].

It is an easy thing to find a case or cases where another offender has received a lesser sentence and, by making the comparison between penalties imposed, argue that the sentence in the case at hand was too harsh.

That approach is far too glib a mechanism by which to assess the complicated task which is determining an appropriate sentence for an offender. It also falls foul of what has been said by the High Court about the use of so-called comparable cases. In Hili v The Queen; Jones v The Queen 242 CLR 520 [2014] HCA 45 at [59] the Court said, citing Dinsdale v The Queen (2000); [2000] HCA 54; 202 CLR 321 at 325 at [6] and Wong v The Queen (2001) 207 CLR 584 at 605 [58]:

‘[…] appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”.’

It was held that the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must determine sentences.”

78. It is no answer to the principles the Court there set out to offer a greater number of “comparable cases” by which to argue that a sentence is manifestly excessive.

79. Of the 15 cases that the applicant advances as demonstrative of error in the sentence imposed upon him, none is truly comparable and little can be drawn from them by way of a “range” of sentence. There should be no surprise in that since no two crimes and no two offenders are alike. Necessarily, sentences will also differ.

80. In Wright v R [2019] NSWCCA 134, there are some superficial similarities in the circumstances of the applicant and those of Mr Wright, and the crimes of each, but the similarities end there. Mr Wright, who received an aggregate sentence of 12 years imprisonment with a NPP of 9 years, was sentenced for one count of aggravated sexual assault – as against four counts that the applicant faced – and two counts of aggravated indecent assault. He did not have a number of other serious sexual offences taken into account on sentence. The facts of the applicant’s crimes, when carefully examined, are more serious than those of Mr Wright, as well as more numerous. This case does not advance the applicant’s argument.

81. The offender in RH v R [2019] NSWCCA 64 was the mother of the victim. Her liability for two counts of aggravated sexual assault, and two of sexual intercourse with a person 14 to 16 years, was on the basis of joint criminal enterprise. She was present and assisted her co-offender, who carried out the sexual acts. For these and one count of procuring a child for sexual activity, she was sentenced to an aggregate term of imprisonment of 16 years with a NPP of 10 years. This Court, in dismissing RH’s appeal against sentence, observed that the sentence was markedly lenient; any reduction would have resulted in a sentence that would have been “an affront to the administration of justice” at [96]. Not only did RH face different charges to those faced by the applicant, the basis of her liability for the most serious of them differed. It is of no assistance as a comparator.

82. The offender in RL v R [2018] NSWCCA 274 was the stepfather of his two victims, one of whom was under 10 years, whilst the second was under 16. He received a total effective sentence of 19 years and 7 months with an effective NPP of 13 years for three counts of aggravated indecent assault, one of sexual intercourse with a child under 10 years, and two of aggravated sexual assault. A further two offences were taken into account on sentence, being one count of aggravated indecent assault and one of aggravated sexual assault. The offences occurred over a 10 year period. A discount of 10% on sentence was allowed. This case is so different to the applicant’s it has no utility as a comparator, or in establishing a range applicable to the applicant’s crimes.

78. The crimes considered in TP v R [2018] NSWCCA 140 were three counts of aggravated indecent assault and one of aggravated sexual assault committed by TP against his 14 year old daughter. All four offences occurred in the course of a single incident. The s 61J(1) offence involved digital-vaginal penetration. The offences were held to be “an aberration”; they were assessed as falling below the mid-range of gravity. An appeal against the sentence imposed, an aggregate sentence of nine years six months with a NPP of six years and two months, was dismissed. Again, the circumstances of this case and the charges are very different, and do not bear comparison with the applicant’s crimes.

79. The circumstances of the offences and the offender in GW v R [2018] NSWCCA 79 are so different to those of the applicant as to provide no assistance whatsoever in determining this ground of appeal. GW was sentenced for 29 sexual offences, being 7 counts of aggravated sexual assault, 8 of aggravated indecent assault, 12 of using a child for pornographic purposes, and 2 counts of possessing child abuse material. A further 26 offences were taken into account on sentence. The nature and extent of the crimes, and the offender’s circumstances, were completely different to those of the applicant. Totality would have had a significant role to play in reducing the aggregate sentence that was imposed at first instance, 18 years imprisonment with a NPP of 13 years and 6 months.

80. What is of assistance in this decision are the remarks of Fullerton J at [37]–[41], where her Honour deals with GW’s reliance upon statistics and “comparable” cases to contend that the sentence imposed upon him was manifestly excessive. The principles there stated are apposite. GW’s appeal was dismissed.

81. In ST v R [2017] NSWCCA 245 the offender received an aggregate sentence of 9 years and 6 months imprisonment, with a NPP of 6 years and 6 months for six offences against his step-daughter, only one of which corresponds with the applicant’s crimes. ST was sentenced for four counts of aggravated indecent assault, one of sexual intercourse with a child aged 14–16 years, and one count of aggravated sexual assault. There were a further three sexual crimes on a Form 1. None of the crimes involved penile-vaginal penetration. The charges against ST are so different as to render it unhelpful by way of comparison.

82. The same problem arises with respect to DG v R [2017] NSWCCA 139: the charges for which DG was sentenced were so different to those faced by the applicant that no comparison can be made. For three counts of aggravated indecent assault and one of aggravated sexual assault, with two offences of sexual intercourse with a child under 16 on a Form 1 document, DG received an aggregate sentence of 10 years with a NPP of 5 years, imposed by this Court after upholding his appeal against sentence.

83. In AGF v R [2016] NSWCCA 236, both the circumstances of the offences and the offender are so different to those of the applicant as to make any attempt at comparison futile. AGF was sentenced for some 10 sexual offences, only one of which was an offence of aggravated sexual assault, committed against his then 18 year old niece by marriage. His personal circumstances included having provided assistance to authorities, for which he received a discount on sentence when re-sentenced in this Court to an effective sentence of 13 years and 6 months imprisonment with a NPP of 9 years. As a consequence of psychological disorders from which AGF suffered, less weight was afforded to general deterrence in determining sentence.

84. Beyond demonstrating that the sentencing statistics can be misleading in establishing a “correct” range of sentence, Erazo v R [2016] NSWCCA 139 is unhelpful in determining this ground of appeal. Mr Erazo pleaded guilty to six offences of aggravated sexual assault, with another six offences on a Form 1 document, each being an offence committed against his step-daughter, who was aged 12 to 17 years in the period of the offending. The offences occurred both before and after the introduction of standard non-parole periods. The assaults were numerous, varied in their nature, and the victim became pregnant as a consequence of the final charged act. The offender appealed against his sentence, one of 14 years imprisonment with a NPP of 10 years, arguing that it was manifestly excessive. In dismissing his appeal, this Court held that the sentence was manifestly inadequate.

85. Despite that finding, the sentence forms part of sentencing statistics for s 61J(1) offences. A sentence held to be erroneously lenient is of no assistance to the applicant in advancing his case.

86. The circumstances in MRM v R [2015] NSWCCA 195 are significantly different and of little to no assistance in the present matter. The offender pleaded guilty to 11 offences, involving 3 victims. There were six counts of aggravated sexual assault, two of sexual intercourse with a person under special care, one of aggravated indecent assault, one of sexual intercourse with a child under 10 years, and one of sexual intercourse with a person 10 to 14 years. On resentence after a successful appeal to this Court, the offender was sentenced to an effective term of 17 years imprisonment with a NPP of 12 years, incorporating an Ellis discount (R v Ellis (1986) 6 NSWLR 603) with respect to two offences.

87. The offences to which the offender in RJB v R [2015] NSWCCA 93 pleaded guilty were very different from those of the applicant, and the utility of the decision as a comparator is significantly undermined thereby. Four of the offences for which RJB was penalised were offences of sexual intercourse with a child under 10 years, at a time when the offence carried 20 and then 25 years imprisonment as a maximum penalty. The remaining two offences were offences of aggravated sexual assault. The victim in each instance was the offender’s step-daughter, who was aged between 6 and 10 years. The offender’s subjective case was limited, with a prior history of domestic violence offences, and guarded prospects of rehabilitation. The total effective sentence passed by this Court was one of 17 years imprisonment with a NPP of 12 years.

88. There are differences in the charges too in DJM v R [2013] NSWCCA 101, with the added difficulty that the judgment provides limited information about the offender’s criminal record or subjective case. DJM pleaded guilty to a number of offences of which his step-daughter was the victim: disseminating child pornography, using a child under 14 years for pornographic purposes, and three counts of aggravated sexual assault, together with an offence of possessing child pornography. An effective sentence of 13 years and 4 months imprisonment was imposed, with a NPP of 10 years.

89. R v GWM [2012] NSWCCA 240 is also very different to the applicant’s case. The 27 year old offender was resentenced in this Court after a Crown appeal against inadequacy of sentence for a single count of aggravated sexual assault was upheld. The victim was the offender’s 11 year old niece, and the offence involved penile–vaginal intercourse to ejaculation. The offender had experienced significant violence and trauma in his childhood, and had become addicted to drugs as a consequence. He had no criminal convictions. He had pleaded guilty and was found to be genuinely remorseful. This Court imposed a sentence of 7 years and 6 months with a NPP of 4 years and 10 months imprisonment.

90. In R v DAJ [2012] NSWCCA 143, a Crown appeal against inadequacy of sentence was upheld by this Court. The offender was dealt with for four counts of aggravated indecent assault and two counts of aggravated sexual assault. The victim was his step-daughter, aged 9 or 10 to 13 years in the period of the offending. The offences involved opportunistic touching of the genital area, and digital–vaginal penetration, and were part of a wider pattern of abuse. The offender had no relevant criminal history and suffered from a major depressive condition. On resentence an effective term of 7 years imprisonment with a NPP of 4 years and 9 months was imposed.

91. Both the offences and the circumstances of the offending remove RSW v R [2012] NSWCCA 13 from consideration as a useful comparator to the applicant’s case. RSW was convicted at trial of three offences, two of which were aggravated sexual assault, whilst the third was a count of aggravated indecent assault. The offences occurred on two separate days, and involved two instances of cunnilingus, with the indecent assault reflecting the offender’s act in placing his penis in his victim’s hand. The child was aged 9-10 years in the relevant period and was the offender’s step-daughter. The offender’s appeal against the sentence imposed upon him of 9 years imprisonment with a NPP of 6 years was dismissed.

92. None of these cases are truly comparable to the applicant’s circumstances. None point to error in the sentence imposed upon him in the District Court. Nor do they, when taken together, establish a range against which the present sentence can be shown to be erroneously excessive.

93. The utility of having regard to cases such as those relied upon by the applicant is not in looking at the sentences imposed in each, and adding or subtracting from the term of sentence imposed to reflect a more serious or less serious decided case; it is in achieving consistency in the application of sentencing principles. As the High Court said in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323 at [34]:

“Fixing the bounds of a range within which a sentence should fall or within which a sentence that has been imposed should have fallen wrongly suggests that sentencing is a mathematical exercise. Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts (footnotes omitted).”

99. The Court continued, at [41]:

“As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect (footnotes omitted).”

100. There was no error of principle in the applicant’s case. Although the sentence might be regarded as stern, a stern sentence was required, to adequately reflect the very serious nature of the applicant’s crimes, to denounce them, to recognise the harm done, to punish the applicant, and to deter both him and importantly, others, from the commission of such offences.

101. Whilst I would grant leave to the applicant to advance this ground, I would dismiss it.

102. Accordingly, I propose the following orders:

1. Leave to appeal on ground one refused;

2. Leave to appeal on ground two granted;

3. Appeal dismissed.

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Endnote

Decision last updated: 03 June 2020