Franklin v R

[2019] NSWCCA 325

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Franklin v R [2019] NSWCCA 325
Hearing dates:	11 October 2019
Date of orders:	30 December 2019
Decision date:	30 December 2019
Before:	Gleeson JA at [1] Johnson J at [2] Cavanagh J at [148]
Decision:	1. Grant the Applicant leave to appeal against sentence. 2. Appeal against sentence dismissed.
Catchwords:	APPEAL – SENTENCE – offender pleaded guilty to a number of sex offences committed over 10 year period against his sister between 1967 and 1977 – unlawful and carnal knowledge of a girl between 10 and 16 contrary to s.71 Crimes Act – incest offence contrary to s.78A Crimes Act – two offences of rape contrary to s.63 Crimes Act – two further offences of indecent assault taken into account on a Form 1 – offences representative of sexual offending against sister over a period of 13 years – whether sentencing Judge erred in assessment of objective seriousness of the rape offences – no error demonstrated in approach taken by sentencing Judge to assessment of objective seriousness – findings of objective seriousness open to the sentencing Judge – whether aggregate sentence imposed was manifestly excessive – where challenges directed to indicative sentences – whether degree of notional accumulation reflected sentencing practices at the time of the offences – where indicative sentences nominated were substantial but not suggestive of error – where sentencing Judge had regard to sentencing principles and practice at time of offending conduct – no error demonstrated in approach taken by sentencing Judge to historical sex offences – aggregate sentence not unreasonable or plainly unjust – appeal dismissed
Legislation Cited:	Child Welfare Act 1939 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 Surveillance Devices Act 2007
Cases Cited:	AK v R [2016] NSWCCA 238 Attorney General for the State of New South Wales v DSF Constructions Pty Limited [2019] NSWCCA 33 Director of Public Prosecutions (Victoria) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kerr v R [2016] NSWCCA 218 Magnuson v R [2013] NSWCCA 50 Morton v R [2018] NSWCCA 84 Mulato v R [2006] NSWCCA 282 O’Sullivan v R [2019] NSWCCA 261 Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221 R v AA [2017] NSWCCA 84 R v Cattell [2019] NSWCCA 297 R v Evans (Court of Criminal Appeal, 24 March 1988) R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 R v Kaye (1986) 22 A Crim R 366 R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 TC v R [2016] NSWCCA 3 v R [2018] NSWCCA 247 Vandeventer v R [2013] NSWCCA 33 WAP v R [2017] NSWCCA 212 Woodward v R [2017] NSWCCA 44 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Texts Cited:	---
Category:	Principal judgment
Parties:	Brian Franklin (a pseudonym) (Applicant) Regina (Respondent)
Representation:	Counsel: Mr L Brasch (Applicant) Mr E Balodis (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/73788
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 2 May 2018 Before: His Honour Judge McLennan SC File Number(s): 2017/73788

Judgment

1. GLEESON JA: I agree with Johnson J.

2. JOHNSON J: The Applicant, Brian Franklin, seeks leave to appeal with respect to sentence imposed by his Honour Judge McLennan SC at the Tamworth District Court on 2 May 2018 for a number of serious sex offences. A pseudonym is used to describe the Applicant as publication of his name would serve to identify his sister, the victim of his offences: s.578A Crimes Act 1900. In addition, several of the Applicant’s offences were committed when he was a juvenile offender: s.15A Children (Criminal Proceedings) Act 1987.

The Offences, Sentence Indications and Aggregate Sentence

3. The Applicant pleaded guilty to the following offences:

1. Count 1 - between 14 July 1970 and 14 July 1971, unlawful and carnal knowledge of a girl aged between 10 and 16 years contrary to s.71 Crimes Act 1900, which carried a maximum penalty of penal servitude for 10 years;

2. Count 2 - between 14 July 1973 and 14 July 1974, carnal knowledge by a male of his sister (incest) contrary to s.78A Crimes Act 1900, which carried a maximum penalty of penal servitude for seven years;

3. Count 3 - between 14 July 1973 and 13 July 1975, an offence of rape contrary to s.63 Crimes Act 1900, which carried a maximum penalty of penal servitude for life; and

4. Count 4 - between 20 June 1977 and 26 June 1977, an offence of rape contrary to s.63 Crimes Act 1900, which carried a maximum penalty of penal servitude for life.

4. At the time of sentence, the Applicant asked the District Court to take into account on sentence for Count 3 the following offences on a Form 1:

1. between 1 January 1967 and 31 December 1967, indecent assault on a female contrary to s.76 Crimes Act 1900, an offence punishable by a maximum penalty of penal servitude for five years if prosecuted separately;

2. between 14 July 1968 and 13 July 1970, indecent assault on a female contrary to s.76 Crimes Act 1900, an offence punishable by a maximum penalty of penal servitude for five years if prosecuted separately.

5. On 2 May 2018, the Applicant was sentenced to an aggregate term of imprisonment for 17 years commencing on 29 March 2017 and expiring on 28 March 2034 with a non-parole period of eight years expiring on 28 March 2025.

6. The sentencing Judge gave the following indications for the purpose of s.53A(2) Crimes (Sentencing Procedure) Act 1999:

1. Count 1 - imprisonment for three years;

2. Count 2 - imprisonment for two years and six months;

3. Count 3 - taking into account the Form 1 offences, imprisonment for 14 years;

4. Count 4 - imprisonment for 10 years.

Grounds of Appeal

7. By Notice of Application for Leave to Appeal Against Sentence filed on 16 August 2019, the Applicant relies upon the following grounds of appeal:

1. Ground 1 - the sentencing Judge erred in assessing the objective seriousness of Count 3 as being towards the top of the range for rape;

2. Ground 2 - the sentencing Judge erred in assessing the objective seriousness of Count 4 as being above the mid-range of seriousness for rape;

3. Ground 3 - the sentence imposed is manifestly excessive.

Facts of Offences

8. An Agreed Statement of Facts was tendered at the sentencing hearing from which the following narrative is drawn.

9. The Applicant was born in 1950. His offences were committed against his sister who is nine years younger than him. It was an agreed fact that the sexual offending occurred over a period of about 13 years, commencing when the victim was five years of age and continuing until she was 17 years of age. The Applicant was aged between 14 and 26 years during the period of offending.

10. The Applicant was sentenced upon the agreed basis that the offences contained in Counts 1-4, and the two offences taken into account on a Form 1, were representative of the Applicant’s offending conduct against the victim. The pattern of offending was such that the victim could not remember every offence committed against her. She stated that the Applicant had sexually assaulted her on many occasions.

Form 1 Indecent Assault Offence Committed in 1967

11. At a time in 1967, when the victim was seven or eight years old and the Applicant was 16 or 17 years old, they were playing in a makeshift cubby house at the rear of the house at which they lived with other members of their family in rural New South Wales.

12. The Applicant rubbed his penis against the victim’s legs and took her hand and placed it on his penis.

Form 1 Indecent Assault Offence Committed Between 1968 and 1970

13. Between 14 July 1968 and 13 July 1970, when the victim was nine or 10 years old and the Applicant was 17 or 18 years old, the victim went into the Applicant’s bedroom to get something.

14. The Applicant came into the room and pushed the victim onto the bed. He put Brylcreem on his penis and on the inside of her thighs. He simulated sexual intercourse for a number of minutes and ejaculated on her thighs. He did not remove the victim’s underpants on this occasion which was said to be unusual.

15. The Applicant got up, laughed and pushed the victim out of the room.

Count 1 - Carnal Knowledge Offence in 1970-1971

16. Count 1 constituted the first occasion on which the Applicant had penile/vaginal intercourse with the victim. At this time, she was aged about 11 years and he was aged 19 or 20 years.

17. On the day of this offence, some children of family friends were staying with the family of the Applicant and the victim for Christmas. The Applicant and the victim were together with the other children near a creek behind the family house in rural New South Wales.

18. The Applicant approached the victim and said words to the effect “I’m going to have sex with you”. He pushed the victim over a log so that she was on her back. The Applicant grabbed the victim’s shorts and pulled them to her knees and then spat on his hand and rubbed it on his penis. The Applicant penetrated the victim’s vagina with his penis and moved it in and out for a period of time causing her pain.

Count 2 - Incest Offence in 1973-1974

19. The offence in Count 2 occurred when the victim was 14 years old and the Applicant was 22 or 23 years old. The Applicant had moved to the Northern Territory for work, but returned to the family home in rural New South Wales during the wet season.

20. On this occasion, the victim was in her bedroom. The Applicant entered the room before leaving for a brief period. When he returned, the Applicant pinned the victim on the bed and removed her shorts and underpants, breaking a button on her shorts. The Applicant spat on his hand and rubbed it on his penis and then dragged the victim closer to him before spitting on his hand and rubbing it on the victim’s vagina. The Applicant inserted his erect penis into the victim’s vagina and had sexual intercourse with her. He removed his penis from her vagina and ejaculated on her stomach and top.

Count 3 - Rape Offence Between 1973 and 1975

21. The offence in Count 3 occurred when the victim was 14 or 15 years old and the Applicant was aged between 22 and 24 years. The Applicant and the victim were staying by themselves at the family home in rural New South Wales.

22. On this occasion, the victim was walking in the hallway when the Applicant tried to grab her to drag her down the hallway. However, she struggled against him and ran into the toilet.

23. Before the victim could lock herself into the toilet, the Applicant pushed her head through the wall between the toilet and the bathroom, with sufficient force to cause the victim to black out. When the victim recovered consciousness, she was pinned over the toilet bowl by the Applicant and he was penetrating her vagina from behind with his penis. The victim tried to struggle, but could not break free.

24. The Applicant had sexual intercourse with her for a period of time and ejaculated on her back before leaving the room laughing.

Count 4 - Rape Offence in 1977

25. The last occasion on which the Applicant had penile/vaginal intercourse with the victim occurred between 20 and 26 June 1977 when the victim was 17 years old and the Applicant was 26 years of age. At that time, the Applicant and the victim were staying at a homestead on a property in rural New South Wales where they were each doing stock work.

26. On the evening of the offence, the victim went to bed after dinner. The Applicant entered the room where she was sleeping. The victim struggled against the Applicant and he removed her jeans by force. The Applicant forced open the victim’s legs and pinned her hands above her head. He placed his penis inside her vagina and moved it in and out. After a period of time, the Applicant removed his penis and ejaculated on the victim’s body. The intercourse caused the victim a burning pain in her vagina.

27. Following the offence, the Applicant left the room and laughed.

28. Immediately following the offence in Count 4, the victim removed a .22 calibre rifle from a cupboard in the room and said to the Applicant “I’ve got a gun here and if you come near me, I’m going to fucking kill you”. The victim left the house and slept in the stables.

Police Investigation in 2016

29. On 8 December 2016, police obtained a warrant under the Surveillance Devices Act 2007 to aid the investigation of the Applicant’s offences.

30. In a lawfully recorded conversation between the Applicant and the victim on 10 January 2017, the victim asked the Applicant why he sexually assaulted her when she was “a kid”. He replied “I’ve got no idea mate”. The Applicant referred to having been sexually assaulted himself and said to the victim “Yeah well, I don’t know why they did it to me and I don’t know why I did it to you mate. I really don’t. I’m really sorry I did it. I really am. I really am, aye”.

31. In a further lawfully recorded conversation on 31 January 2017, the victim referred to the last time the Applicant had raped her (Count 4) and the Applicant said “Yep”. He agreed with the victim’s observation “I could have shot you that night”. The Applicant apologised and said “I don’t know what the fuck was in my head”.

The Applicant is Arrested and Charged

32. On 29 March 2017, the Applicant was arrested in Queensland for the present offences and was remanded in custody to appear before a Court in New South Wales. The Applicant has remained in custody since that date.

The Applicant’s Subjective Circumstances

33. As noted earlier, the Applicant was born in 1950 and was 67 years old at the time of sentence.

34. The Applicant has a criminal history for summary offences committed between 1972 and 1980 for which he received fines.

35. After the commission of the present offences between, the Applicant committed further sexual offences against his stepdaughter for which he was sentenced in 1987.

36. On 16 June 1987, the Applicant was sentenced at the Coffs Harbour District Court to an effective head sentence of imprisonment for 12 years with a non-parole period of five years for offences of having sexual intercourse with a girl aged between 10 and 14 years (two counts), indecent assault upon a girl under 16 years (five counts) and indecent assault upon a person under 16 years with the Applicant being in authority over the victim.

37. The Applicant was released on parole after imprisonment for three years and four months. With respect to the offences for which he was sentenced in 1987, the Applicant admitted that he had sexual intercourse with his stepdaughter on 100 to 150 occasions over a period of six or seven years.

38. Placed before the sentencing Judge was a presentence report dated 12 June 1987 tendered in the Coffs Harbour District Court at those sentencing proceedings. The author of the 1987 presentence report described the Applicant as “an uncomplicated ingenuous country man who is genuinely contrite over what he has done”.

39. In addition, the brief of evidence referable to the 1987 sentencing hearing was tendered at the 2018 sentencing hearing.

40. A presentence report dated 30 January 2018 was tendered at the sentencing hearing. The author of the report noted that the Applicant had successfully completed a sex offenders program whilst in custody serving his 1987 sentence and that he successfully completed his period on parole from 1990 without incident. Accompanying the presentence report was a case note dated 21 January 2018 by Simon Burns, a psychologist, employed by Corrective Services NSW.

41. A report of Dr Sharon Reutens, consultant psychiatrist, dated 22 September 2017 was tendered in the defence case on sentence. Dr Reutens assessed the Applicant as fulfilling the criteria in DSM-5 for paedophilic disorder. Dr Reutens observed that the Applicant’s “risk of re-offending will be lower with increasing age and frailty”.

42. The sentencing Judge referred to aspects of Dr Reutens’ report in his sentencing remarks.

Victim Impact Statement

43. A victim impact statement from the Applicant’s sister was tendered at the sentencing hearing. The victim outlined the devastating consequences of the Applicant’s offending upon her involving very substantial interference with her development and relationships including fear and anxiety over many years.

44. The victim impact statement conveys the profound trauma and harm occasioned to the victim by the criminal actions of her brother during her childhood and teenage years.

Some Findings by the Sentencing Judge

45. Having regard to the grounds of appeal, it is appropriate to set out parts of the careful and detailed sentencing remarks delivered on 2 May 2018.

46. After noting the offences for which the Applicant was to be sentenced and the Form 1 offences to be taken into account, his Honour stated that an aggregate sentence would be imposed with each sentence indication to be reduced by 25% for the Applicant’s pleas of guilty (ROS1).

47. After reciting the facts of the offences (ROS2-8), his Honour expressed the following conclusions with respect to the objective seriousness of the offences contained in Counts 1-4 (ROS8-9) (emphasis added)

“COUNT 1:

I assess this as being a midrange offence. The complainant was around 11 years of age. By now the offender had almost reached the age of 21. The age differential between a 21 year old person and an 11 year old, is in my view, quite pronounced. The offender again used force to get the complainant into a position for intercourse and he pulled her pants down. The intercourse caused pain. Again, the offender abused his relationship with his sister by engaging in this conduct.

COUNT 2:

I assess as being above the midrange for this offence. It being one of incest. Again, it is accompanied by force and led to ejaculation. The abuse of his relationship with his sister is, in my view, an aspect of the offence of incest and is not double counted by me.

COUNT 3:

Is an offence towards the top of the range of rape, in my view. It is characterised by brutality and depravity. Pursued into the toilet as she tried to escape his advances, the complainant had her head pushed through a wall, thereby rendering her unconscious. It was whilst she was in this unconscious state that she was positioned and penetrated and then when she regained consciousness, restrained from her attempts to escape. His callous behaviour culminated in his ejaculating on her and then leaving the room laughing. This was a despicable act on his part, which even if it were an isolated offence, would justify a very lengthy sentence.

COUNT 4:

The persistent violence with which [the Applicant] forced himself on his sister is manifest again in count 4. Again there was ejaculation and again pain, resulting from the forced intercourse. Yet again he laughed at her obvious distress. The effect on the victim of this particular offence and the course of conduct preceding it, is evidenced by the fact that at the conclusion of it, the complainant went and got a rifle and threatened to kill the offender. She was, as the exchange with him on 31 January 2017 reveals, very close to shooting him.

In what is now 38 years in the practice of the criminal law, I have never seen a victim of rape or sexual assault driven to such extremes. The victim impact statement of the complainant made some 40 odd years later only hints at what must have been a terror and a rage at that moment. I am comfortably satisfied that this offence is above the mid-range of seriousness.”

48. The sentencing Judge then observed (ROS9):

“The agreed facts reveal statements made by the offender which expressed remorse. I accept those statements made so long ago after the events as being genuine. The actions of the offender at this time in his life, however, were not aberrations and nor could they be regarded in some way as youthful folly. It is clear that the offender was in fact an untreated and undiagnosed paedophile.”

49. With respect to a suggested causal link between offences committed against the Applicant and his own offending, his Honour said (ROS11-12):

“The submission is made by the offender that there is a causal link between his victimisation and the subsequent victimisation of his sister. That link is not established to my satisfaction on the balance of probabilities. The offender does not draw any such link or at least he does not purport to offer that up as an excuse for his own conduct. Dr Reutens offers no opinion to support the proposition that there is a link between what happened to the offender and what he did subsequently. The highest that it gets is what is recorded at pages 11 and 12 of Dr Reutens report as follows,

‘Several studies including meta-analyses have shown that sexual offending against children is higher among sexually abused. Males sexually abused at the age of 12 years or older are 3.33 times more likely to be convicted of a sexual offence’.

As Mr Bouveng [counsel for the Applicant] acknowledges, there are child victims of sexual assault who go on to be adult offenders. There are those who do not go on to be adult offenders and there are offenders who have not been sexually assaulted as children at all. Absent anything more concrete than statistical probability, I am not satisfied in the individual case before me, that such a link is made. It remains of course a matter of the offender’s background which is taken into account in the general mix, on general principles.

There are good reasons for thinking that the offender is, as a matter of fact, rehabilitated. There are good reasons for thinking also that he is unlikely to re-offend. Apart from the sexual offender’s course which he underwent in prison on his previous term of imprisonment, which appears to have had some impact upon him, the fact is, he is unlikely upon his release, to be in a position to access young children in any event. Dr Reutens observes that his risk of reoffending will be lower with increasing age and frailty.”

50. His Honour referred to the Applicant’s health as a factor on sentence (ROS12):

“I note that the offender has certain health issues arising by virtue of his age but there is nothing before me to suggest that custody itself will exacerbate those conditions or that any health issues cannot be dealt with effectively within the prison system. To be fair, no argument to that effect was made. Rather I understand that those issues are drawn to the Court’s attention as being matters relevant again to be taken into account in what is referred to as the process of instinctive synthesis, arriving at the ultimate sentence in this case.”

51. The sentencing Judge then addressed the approach to sentencing for historical sex offences (ROS12-15). His Honour adopted the approach outlined by R A Hulme J (Beazley P and Bellew J agreeing) in Woodward v R [2017] NSWCCA 44 with respect to sentencing for historical matters.

52. His Honour identified the approach to be taken as follows (ROS13):

“The correct approach as I perceive it to be, is as follows. I am to have regard to the maximum penalty at the time of the offence. Any identifiable sentencing practices and patterns at the time and the maximum penalty reflecting community attitudes prevalent at the time of sentencing, so much follows from his Honour Hulme J’s judgment in Woodward at para 75. As far as the offence of rape is concerned, I note what his Honour had to say at para 97:

“The crime of rape pre-14 July 1981 (being confined to penile/vaginal intercourse) was one that encompassed a much narrower range of sexually penetrative conduct than was later encompassed in the various forms of offences of sexual intercourse without consent. But the circumstances in which the offence could be committed varied widely. A victim could be anyone from a young female child to a mature or elderly woman. There might be no physical violence beyond the intercourse itself or there could be the infliction of extreme physical injury. The offence could be committed alone or by a gang of offenders. In relation to child victims, the perpetrator could be a stranger or could be a trusted friend or relative, even a close family member in a position of trust. The permutations were almost infinite’.

I regard these offences as being very serious to say the least.”

53. His Honour had regard to the fact that a number of the offences were committed at a time when the Applicant himself was a juvenile offender. His Honour said (ROS14):

“At least in respect of sequences 2 and 3 on the Form 1, I must also have regard to The Queen v AA [2017] NSWCCA 84, particularly at paras 60 to 61, which are set out in Mr Bouveng’s outline of submissions at pages 15 to 16. Mr Bouveng submits that at the time, offences under 76 of the Crimes Act 1900, committed by a juvenile, would have been governed by the Child Welfare Act 1939 as outlined by the Court of Criminal Appeal in TC v The Queen [2016] NSWCCA 3 at paras 39 to 40. It appears from s 82(3) of the Child Welfare Act 1939, that the maximum period of time that a young person could be committed to institution was three years. Mr Bouveng further submits that the fact that the offender would have been dealt with in this fashion in 1967 and 1968 is a mitigating factor that the Court must take into account in relation to the Form 1 matters. I accept those submissions and I will adopt that approach, which will moderate the impact upon the indicative sentence that I would impose in respect of count 3.”

54. The sentencing Judge then addressed the need to have regard to past sentencing practices in setting a non-parole period (ROS14-15):

“Another matter to consider is the practice that was prevailing at the time in respect of the imposition of non-parole periods and its relationship with the head sentence. At para 93 of Woodward, Hulme J quoted Garling J in MPB v The Queen [2013] NSWCCA 213 as follows.

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

His Honour Hulme J then went on to make this observation.

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

The exercise of that discretionary assessment is to be guided ultimately by an assessment as to what in my assessment is the minimum period to be served by the offender, having regard to all the purposes of punishment which are applicable in the instant case.”

55. His Honour had regard to general deterrence and the need to punish the Applicant for his “egregious abuse of his sister” and “to recognise the harm to her and to express the community’s disapproval” of the offending (ROS15-16).

56. His Honour made a finding of special circumstances by reference to the need for the Applicant on release to be given an extended period on parole to facilitate his adjustment into the community as an old man (ROS16).

57. With respect to the proportion between the non-parole period and the head sentence, the sentencing Judge said (ROS16):

“I do not accept the proposition that the non-parole period should be one-third of the aggregate sentence I am about to impose. That would result in a completely inadequate punishment in my view. I will fix a non-parole period at just less than 50 per cent of the head sentence.”

58. His Honour then proceeded to impose the aggregate sentence and to give the sentence indications referred to earlier in this judgment.

Ground 1 - Claim of Error in Assessment of Objective Seriousness of Count 3 as being Towards the Top of the Range for Rape

Submissions of the Applicant

59. Mr Brasch, counsel for the Applicant, submitted that the sentencing Judge had fallen into error in his assessment of the objective seriousness of the offence of rape contained in Count 3 (see [47] above). He accepted that assessment of objective seriousness of an offence was a matter for the sentencing Judge and that this Court should be slow to interfere with such an assessment with the necessity for error to be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: Attorney General for the State of New South Wales v DSF Constructions Pty Limited [2019] NSWCCA 33 at [67].

60. Mr Brasch submitted that the assessment of the objective seriousness of an offence of rape must be considered in the context of what conduct was encapsulated by s.63 Crimes Act 1900 at the time of the offending: Woodward v R at [97]. Whilst acknowledging that there were features of the Applicant’s offending in Count 3 which made this a serious offence, counsel submitted that those features did not place the offence into the category of being “towards the top of the range of rape” when regard is had to the wide range of circumstances that could give rise to an offence of rape.

61. It was submitted that, for an offence of rape to be assessed as being towards the top of the range, it would require it to have some feature or features justifying that assessment, such as an offence committed by a gang or an offence involving the infliction of extreme physical injury. Whilst acknowledging that the victim in this case was a female child, it was submitted that she was not particularly young at the time of the offence in Count 3.

62. It was submitted that the sentencing Judge had overstated the objective seriousness of the offence in Count 3 having regard to it being an offence of rape as opposed to an offence under s.61J Crimes Act 1900, being the current cognate offence.

Crown Submissions

63. The Crown submitted that the assessment of objective seriousness of an offence is classically a matter for the sentencing Judge with this Court being slow to interfere with such an assessment: Mulato v R [2006] NSWCCA 282 at [37], [45]-[46].

64. The Crown submitted that the sentencing Judge gave careful and detailed consideration to the nature of the offending conduct contained in Count 3. It was submitted that his Honour carefully reviewed the facts and took into account all relevant factors without taking into account any irrelevant consideration in making the challenged assessment of objective seriousness.

65. In response to the Applicant’s submission that the offence in Count 3 did not involve certain features such as a gang offence or one involving infliction of extreme physical injury, the Crown submitted that the absence of such features did not assist the Applicant in challenging the assessment of objective seriousness with respect to Count 3: Morton v R [2018] NSWCCA 84 at [41].

66. Further, it was submitted that the absence of a feature such as the infliction of extreme physical injury does not assist the Applicant as the presence of such a factor would give rise to a separate and discrete offence as well as the offence of rape.

67. The Crown submitted that the sentencing Judge had proper regard to the spectrum of conduct encompassed by an offence under s.63 Crimes Act 1900 and had regard, as well, to the comments of R A Hulme J in Woodward v R at [97]. The Crown submitted that, having turned his mind to that issue, it was open to the sentencing Judge to find that the conduct involved in Count 3 placed it “towards the top of the range for rape”.

68. It was submitted that this finding was open to the sentencing Judge and that no error had been demonstrated as asserted in the first ground of appeal.

Decision

69. The offence of rape in s.63 Crimes Act 1900, of course, predates the introduction of standard non-parole periods in 2003. The requirement of a sentencing court to make a finding concerning objective gravity of a rape offence arises from general law sentencing principles.

70. In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at 473 [46]:

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

71. The concept of objective gravity or objective seriousness under the general law involves a range of factors including the nature and conduct of the offence in question, the age of the victim, the relationship between the offender and the victim and other objective features of the offence, together with other circumstances which account for criminal conduct: Tepania v R [2018] NSWCCA 247 at [112].

72. The assessment of objective seriousness of an offence is quintessentially a matter for the sentencing Judge: Mulato v R at [46]. The question is whether or not the particular characterisation which the sentencing Judge gave to the circumstances of the offence was open to the sentencing Judge: Mulato v R at [37]. In order for this Court to interfere with the assessment made by the sentencing Judge, error must be demonstrated in accordance with the principles in House v The King: Mulato v R at [46]; Attorney General for the State of New South Wales v DSF Constructions Pty Limited at [67].

73. Of course, this Court is not simply re-exercising the sentencing discretion for this purpose. Error in accordance with the principles in House v The King must be demonstrated so that there is some error of principle or fact or a failure to take into account a relevant factor or the taking into account of an irrelevant consideration or a finding that the assessment made by the sentencing Judge was not open in the circumstances of the case.

74. The sentencing Judge made a concise finding with respect to the objective seriousness of the rape offence contained in Count 3 (see [47] above). In doing so, his Honour had regard to the observations of R A Hulme J in Woodward v R at [97] concerning the wide circumstances in which a crime of rape may be committed (see [52] above).

75. In referring to a range of factors in Woodward v R at [97], R A Hulme J was not purporting to set out an exhaustive list of circumstances which bear upon an assessment of objective seriousness of a crime of rape. The point being made was that there was a wide range of circumstances which may call for consideration in the particular case.

76. When regard is had to the factors considered by the sentencing Judge in this case with respect to Count 3, I am satisfied that the finding challenged in this ground of appeal was open. It has certainly not been demonstrated that the finding was erroneous in accordance with the principles in House v The King.

77. The offence in Count 3 (see [21]-[24] above) involved a violent sexual assault committed against a girl aged 14 or 15 years in circumstances which constituted a grave and deliberate abuse of the familial relationship between the Applicant and his younger sister. The Applicant, then aged between 22 and 24 years, tried to grab and drag the victim within her own home, with him pushing her head through the wall between the toilet and the bathroom to such an extent that she lost consciousness. The Applicant persisted with the offence after these acts which were calculated to overcome the victim’s resistance and rendered her unconscious. The Applicant positioned the victim over the toilet and had penile/vaginal intercourse with her whilst she attempted to struggle. The Applicant ejaculated on the victim’s back and then left the room laughing.

78. It was clearly open to the sentencing Judge to find (see [47] above) that the offence in Count 3 was “characterised by brutality and depravity” and was a “despicable act” on the Applicant’s part which “even if it were an isolated offence would justify a very lengthy sentence”. The circumstances of this offence, and the reasoning of the sentencing Judge, provided an appropriate foundation for a finding that the offence lay “towards the top of the range of rape”.

79. I do not accept the Applicant’s submission that the sentencing Judge overstated the position in this assessment having regard to the offence being one of rape as opposed to the contemporary version of that offence. As was made clear in Woodward v R, a sentencing Judge should have regard to any relevant reduction in penalty for the “modern analogue” of the offence of rape. That is what the sentencing Judge did in this case (see [51]-[52] above).

80. No error has been demonstrated as asserted in the first ground of appeal.

Ground 2 - Claim of Error in Assessment of Objective Seriousness of Count 4 as being Above the Mid-Range of Seriousness for Rape

Submissions of the Applicant

81. Mr Brasch submitted that the sentencing Judge had erred in his assessment of the objective seriousness of the offence in Count 4 as being above the mid-range of seriousness for rape (see [47] above).

82. General submissions with respect to assessment of objective seriousness for rape offences, as made for the Applicant under the first ground of appeal, were repeated in the context of the second ground of appeal.

83. It was submitted that the factors referred to by the sentencing Judge did not leave open to him the assessment of objective seriousness made concerning this count.

84. Whilst accepting that the offence contained in Count 4 could be described as being in the mid-range of seriousness, it was submitted that it was erroneous to make a finding that the offence lay above the mid-range of seriousness for rape.

Crown Submissions

85. The Crown submitted that the finding with respect to objective seriousness of Count 4 was open to the sentencing Judge. It was submitted that this was the last offence committed by the Applicant against the victim. The offence involved considerable violence on the part of the Applicant who overcame the victim who was struggling against him, removing her jeans by force and forcing her legs apart. It was submitted that there was forceful penile/vaginal intercourse committed whilst the Applicant pinned the victim’s arms above her head with the Applicant ejaculating on the victim with the intercourse itself causing burning pain to the victim.

86. The Crown pointed to the fact that, once again, the Applicant laughed as he left the room. It was submitted that the factors referred to by the sentencing Judge provided sufficient foundation for the finding made as to objective seriousness.

Decision

87. I have regard, once again, to the principles to be applied by this Court in considering a ground of appeal which challenges as erroneous a sentencing Judge’s assessment of the objective seriousness of an offence (see [69]-[73] above).

88. The victim was 17 years old at the time of this offence. The Applicant used a significant degree of force to control the resisting victim before inserting his penis in her vagina and having forceful intercourse with her. He withdrew his penis and ejaculated on the victim’s body. Finally and callously, the Applicant laughed and left the room.

87. This is a grave offence of rape, aggravated further by the fact that the Applicant had sexually assaulted his own sister.

88. In my view, it was well open to the sentencing Judge to make the finding that this offence was “above the mid-range of seriousness”. His Honour identified the features which he took into account for this purpose and had regard, as well, to the principles in Woodward v R. No error has been demonstrated in this respect.

89. I would reject the second ground of appeal.

Ground 3 - Claim that the Sentence was Manifestly Excessive

Submissions of the Applicant

92. Counsel for the Applicant submitted that the aggregate sentence imposed was manifestly excessive having regard, in particular, to the favourable findings made by his Honour concerning the Applicant and sentencing practices at the time of the offences. It was submitted that the sentencing Judge had made a number of positive findings in favour of the Applicant including that he was rehabilitated, unlikely to reoffend and genuinely remorseful.

93. Whilst acknowledging that the Applicant had later matters on his criminal history, it was emphasised that those offences occurred after the offences for which the Applicant was to be sentenced so that he was, at the time of the commission of present offences, a person with no prior criminal history and a young man.

94. Whilst accepting that it was necessary for the Applicant to demonstrate that the aggregate sentence was manifestly excessive, submissions were made by reference to the sentence indications for the offences.

95. With respect to Count 3, where the sentence indication was 14 years’ imprisonment, counsel for the Applicant submitted that, before the 25% discount for the plea of guilty, the starting point was imprisonment for 18 years and eight months. It was noted that the modern analogue offence under s.61J Crimes Act 1900 of having sexual intercourse without consent with a person under the age of 16 years carries a maximum penalty of 20 years’ imprisonment. It was submitted that a sentence indication with a notional starting point of 18 years and eight months placed that indication very much towards the upper end of the sentence for the modern analogue offence and that this was not warranted in the circumstances of this offence.

96. It was accepted that two Form 1 offences were taken into account in passing sentence for Count 3, but it was noted that these offences had been committed when the Applicant was a juvenile and that it was necessary to have regard to sentencing practices at the time with respect to the sentencing of juvenile offenders: TC v R [2016] NSWCCA 3; R v AA [2017] NSWCCA 84.

97. With respect to Count 4, where the sentence indication was 10 years’ imprisonment, it was noted that the notional starting point, before the 25% discount, was imprisonment for 13 years and four months. It was submitted that this is very close to the maximum penalty of 14 years’ imprisonment that applies to the modern analogue offence of having sexual intercourse without consent under s.61I Crimes Act 1900. It was submitted for the Applicant that a starting point of that order suggested error and was a factor which contributed to the imposition of a manifestly excessive aggregate sentence.

98. With respect to issues of concurrence, accumulation and totality, reliance was placed upon Magnuson v R [2013] NSWCCA 50 where Button J (McClellan CJ at CL and Bellew J agreeing) said at [143]:

“However, the overarching structure resulting from the approach of her Honour to questions of totality, concurrence, and cumulation needs to be considered in light of the sentencing standards of the late 1970s to early 1980s. The fact is that the approach to questions of cumulation and concurrence was more lax before the handing down of the decision in Pearce v The Queen in 1998. Indeed, sentencing structures in those days often bore a similarity to those that result nowadays from the modern practice of aggregate sentencing, pursuant to s 53A of the Crimes (Sentencing Procedure) Act.”

99. Counsel for the Applicant submitted that the degree of notional accumulation of the sentence indications undertaken to arrive at the aggregate sentence did not reflect sentencing practices at the time of the offences and, as a consequence, the aggregate sentence was manifestly excessive.

100. The Applicant pointed to the sentencing outcome in Magnuson v R as well, where an aggregate sentence of 19 years’ imprisonment for a number of offences committed against young girls (two of who were his stepdaughters) in the mid-1970s through to the early 1980s was reduced on appeal to an aggregate sentence of imprisonment for 16 years with a non-parole period of nine years.

101. The Applicant relied as well on the sentencing outcome in Woodward v R where the applicant had committed a number of sexual offences in the early 1970s against his daughter when aged 10-13 years. The sentencing Judge imposed an aggregate sentence of 18 years’ imprisonment with a nine-year non-parole period, a sentence which was not interfered with on appeal.

Crown Submissions

102. The Crown submitted that the Applicant had not demonstrated that the aggregate sentence was manifestly excessive. It was submitted that a number of factors supported this conclusion, including the youth of the victim, the significant age differential between the Applicant and the victim, the significant breach of trust involved in the repeated commission of sexual offences against the Applicant’s own sister, the fact that offences were committed against the victim in her home with the offences for which the Applicant was to be sentenced not being isolated occasions, but being representative of other offending that took place over a 13-year period.

103. Whilst the Applicant had demonstrated genuine remorse, the Crown submitted that the entrenched pattern of offending against his own sister over an extended period demonstrated particular callousness.

104. The Crown submitted that, even if the Court were to conclude that any of the sentence indications was too high, it did not follow that the aggregate sentence was unreasonable or plainly unjust: Kerr v R [2016] NSWCCA 218 at [114]. The Crown submitted that the sentence indications reflected a very considerable degree of notional concurrency in the exercise of sentencing discretion.

105. To the extent that the Applicant sought to rely upon Magnuson v R and Woodward v R as comparative cases, the Crown emphasised the limitations surrounding the use of other sentencing decisions as a measure of the sentence imposed in the case under consideration: Director of Public Prosecutions (Victoria) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [83]-[84]; Vandeventer v R [2013] NSWCCA 33 at [45].

106. In any event, the Crown submitted that Magnuson v R and Woodward v R are distinguishable from the present case. The comments made by Button J in Magnuson v R at [143] concerning the proper approach to accumulation should be viewed in light of the fact that the sentencing Judge had structured the sentence so that the effective non-parole period for the series of offences against one victim were wholly cumulative upon the non-parole periods imposed for the offences against another victim, which were in turn wholly cumulative on the non-parole periods imposed for offences against a third victim. It was submitted, as well, that the offender in Magnuson v R was sentenced for a number of offences committed before and after the legislative reforms that came into effect on 14 July 1981 which abolished the offence of rape and specified significantly lower maximum penalties for, amongst other offences, sexual intercourse without consent (s.61D(1) Crimes Act 1900).

107. With respect to Woodward v R, the Crown noted the Applicant’s acknowledgement that the conduct involved in that case was markedly less serious than the present case and that the offender in that case had no prior or subsequent convictions. Again, a challenge in that case to the aggregate sentence of imprisonment for 18 years with a non-parole period of nine years was dismissed on appeal.

108. The Crown submitted that the aggregate sentence imposed upon the Applicant was not manifestly excessive.

Decision

109. The principles to be applied by this Court where a ground of appeal asserts manifest excess on sentence are well established.

110. In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

*   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

*   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

*   It is not to the point that this Court might have exercised the sentencing discretion differently.

*   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

*   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

111. Where it is contended that an aggregate sentence is manifestly excessive, the statement of Bathurst CJ (Hoeben CJ at CL and Price J agreeing) in Kerr v R at [114] should be kept in mind:

“As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive.”

112. It is open to the Applicant to make submissions by reference to sentence indications in support of an argument that the aggregate sentence itself is manifestly excessive. However, for this ground of appeal to be established, it is necessary for the Court to find that the aggregate sentence itself is unreasonable or plainly unjust.

113. The sentencing Judge was well aware of sentencing practices which applied to the imposition of sentence for historical sexual offences at the time when sentence was imposed in May 2018. Section 25AA Crimes (Sentencing Procedure) Act 1999 (to which I will return later in this judgment) did not come into effect until 31 August 2018, following the commencement of Schedule 3(6) of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.

114. The sentencing Judge had regard to general law principles applicable at the time with respect to sentencing for historical child sex offences.

115. The present challenge is directed to the quantum of the sentence indications nominated, and then the quantum of the aggregate sentence actually imposed.

116. With respect to Counts 3 and 4, the sentencing Judge had regard to the decision in Woodward v R and the relevance on sentence of maximum sentences for analogue offences. It must be kept in mind that the maximum penalty for rape was imprisonment for life.

117. In Magnuson v R, Button J (at [96]-[105]) traced aspects of the history of sentencing for rape offences. Button J (at [121]-[126]) referred to what were described as “modern analogues” for the offence or rape and the changes in maximum penalty for those offences which occurred after the repeal of the offence of rape. After referring to the sentencing patterns in the 1970s and 1980s (at [130]-[132]), Button J expressed the following significant conclusion at [132]:

“I also think it likely that the overall range of non-parole periods for offences that were prosecuted as rape before 1981 has increased. However, I am not satisfied that sentences for rape committed against children before 1981 were shorter than sentences imposed nowadays for sexual intercourse without consent with children founded on penile vaginal intercourse, whether as to head sentence or non-parole period.”

118. In Woodward v R, R A Hulme J undertook a helpful analysis (at [46]-[54]) of what was described accurately (at [51]) as the “progressive confusion of offences substituted for the offence of rape” after its abolition in 1981. R A Hulme J said at [70]-[72]:

“70   In the cluttered history of continual amendment of legislation dealing with sexual assault offences since the abolition of rape in 1981 and buggery in 1984, only a small proportion of which I have mentioned, the picture emerges that the conduct constituting the applicant's offences has been the subject of varying maximum penalties.

71   The High Court of Australia said in Elias v The Queen [2013] HCA 31; 248 CLR 483 at [27] that the maximum penalty represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. In the 40-odd years since the applicant's offending the yardstick has varied quite significantly. Rape was an offence punishable by life but it was replaced by offences constituting potential component parts of it that, depending on the breadth of offending conduct involved, saw an offender exposed to a maximum of anything from 7 years to 30 years imprisonment. The constituent components in the applicant's offence of rape became an offence with a maximum of 10 years. In 1984, the applicant's conduct constituting the buggery offence become something that would also bring liability for the same penalty.

72   There were increases in penalties for conduct that contained attributes of a crime of rape in the course of the 1980's until the present time when what previously was rape can constitute an offence carrying a maximum penalty of 14 years (s 61I) up to life (s 61JA – aggravated sexual intercourse without consent in company).”

119. R A Hulme J identified the correct approach to be taken when sentencing for offences of rape at [75]:

“I accept the submission by counsel for the Crown. The correct approach was to have regard to the maximum penalty at the time of the offence, any identifiable sentencing practices and patterns at that time, and the maximum penalty reflecting community attitudes prevalent at the time of sentencing. It would be entirely inappropriate to afford the applicant leniency by way of windfall by having regard to a lower maximum penalty that prevailed for a time before it was abandoned many years before he came to be sentenced.”

120. With respect to the claim of manifest excess in Woodward v R, R A Hulme J said at [97]-[104]:

“97   The crime of rape pre-14 July 1981 (being confined to penile/vaginal intercourse) was one that encompassed a much narrower range of sexually penetrative conduct than was later encompassed in the various forms of offences of sexual intercourse without consent. But the circumstances in which the offence could be committed varied widely. A victim could be anyone from a young female child to a mature or elderly woman. There might be no physical violence beyond the intercourse itself or there could be the infliction of extreme physical injury. The offence could be committed alone or by a gang of offenders. In relation to child victims, the perpetrator could be a stranger or could be a trusted friend or relative, even a close family member in a position of trust. The permutations were almost infinite. Similar considerations apply to the former crime of buggery.

98   In this case there was regular child sexual abuse of an extremely serious kind by a father towards his natural daughter when she was aged from 10 until 13. The six offences for which the applicant was to be sentenced, and the three further offences to be taken into account, were not isolated instances but were part of a sustained course of conduct. (Of course, the applicant was only to be punished for what he was charged with.) The applicant appears to have had a sense of entitlement to the serious criminal mistreatment of his daughter: ‘I love you and that's the reason that I do it’. If she screamed out in pain or cried it did not deter him from continuing. He told her not to tell anyone and on one occasion he threatened that she would not see her brother again if she did. To further cover up his offending the applicant put the child on the contraceptive pill. Most of the offending occurred in the family home where the child was subject to the power and authority of her tormentor. She had no effective choice but to submit to the sexual depravations of a person who should have been her protector.

99   In the more enlightened understanding of such matters these days, the enduring harm the applicant's offending caused the complainant does not come completely by surprise when one reads the victim impact statement. It makes abundantly clear that her life in a variety of respects has been affected badly and for a very long time.

100   The sentencing judge was correct, with respect, to find that the offences were ‘extremely serious’.

101   To make good a ground asserting that a sentence is manifestly excessive it is not a matter of this Court simply substituting its own view of what the appropriate sentence might have been: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. It is necessary for the applicant to establish that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen at 370-371 [25].

102   This was a case in which there was a very fine but difficult balance to be struck: an aged offender with various forms of ill-health on the one hand with very serious crimes for which he was to be brought to account on the other. I accept that general deterrence was of less significance in the circumstances. The applicant was of otherwise good character; he had entered early pleas of guilty; and, although he was less than completely remorseful with his attempts to blame his victim, he was unlikely to re-offend.

103   The applicant's conduct constituting the rape offences would these days attract a maximum penalty of imprisonment for 20 years when the penalty was formerly life imprisonment. But considering the range of conduct encompassed by the offence of rape, it is not apparent to me that the sentence that would have been imposed in the 1970's would have been much different to what might be expected if the same offence was committed by a father upon a daughter in the same circumstances now. It is not apparent that the indicative sentence for the offence of buggery would have been appreciably different either if the applicant had been sentenced against the then maximum penalty of 14 years in the 1970's.

104   The non-parole period assessed by the primary judge which is half of the total term could possibly have been less if some more weight had been given to the applicant's age and ill-health but I do not believe the primary judge's assessment was one that was not open to him in the exercise of his discretion.”

121. Making due allowance for the fact that the Applicant committed offences over a 13-year period against his younger sister, these observations of R A Hulme J in Woodward v R are helpful in the determination of manifest excess in the present case.

121. I have already rejected grounds which contended that the assessments of objective seriousness with respect to Counts 3 and 4 were erroneous. The findings made by the sentencing Judge with respect to those offences were open in this case. These were very grave offences of rape committed against the Applicant’s own younger sister. As noted earlier, there were particular features of both offences which were especially grave. The Applicant acted in a callous way after each of these offences by laughing at the devastated victim, his own sister, as he departed the scene of each crime.

122. Comparison of starting point sentences for Counts 3 and 4 before application of the 25% discounts with the maximum penalty for analogue offences provides limited assistance to the Applicant. What is clear from the findings of the sentencing Judge, and the facts of the offences contained in Counts 3 and 4, is that these were very serious offences of rape with respect to which sentence indications were to be nominated.

123. The Applicant’s offences against the victim extended over a period exceeding 10 years. This was a predatory course of conduct directed to the Applicant’s younger sister, who was vulnerable to the Applicant’s sexual offending through her proximity to him in the family home, an opportunity which the Applicant exploited over a number of years. There was a “systematic violation” of the victim by the Applicant over a period of years: R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [9] (Spigelman CJ).

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

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

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

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

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

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

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

129. The victim in this case was sexually exploited by the Applicant over a period of 13 years when she was aged between five to 17 years.

130. The Applicant’s offences not only breached the absolute prohibition on sexual activity with a child, but fractured the legal and moral code which prohibits sexual activity between a brother and sister. In this case, of course, the sexual activity involved forceful sexual offending by the Applicant against his young sister. The victim impact statement in this case speaks eloquently of the great harm done to children through sexual offending and, in this case, the very damaging consequences of sexual offending by a brother against his young sister.

131. It was necessary for the sentencing outcome in this case to reflect this especially serious state of affairs.

132. The following features are pertinent to the contention that the aggregate sentence was manifestly excessive:

1. the victim was a young girl aged between 11 and 17 years at the time of the offences in Counts 1-4 and as young as seven or eight years at the time of the first Form 1 offence;

2. there was a significant age differential between the Applicant and the victim with him being nine years older than her;

3. the offending involved a significant breach of trust with the Applicant taking advantage of his familial relationship with his sister to gratify himself sexually;

4. the Applicant committed offences against the victim in her home in Counts 1, 2 and 3 and both Form 1 offences;

5. each offence was itself very serious for reasons outlined earlier in this judgment;

6. in sentencing the Applicant for Count 3, the Court was asked to take into account two indecent assault offences on a Form 1 - these offences were themselves relatively serious although they were committed when the Applicant was a juvenile, a factor which the sentencing Judge took into account together with the fact that they would have, at the time, been dealt with under the Child Welfare Act 1939 - his Honour applied the decision of this Court in TC v R at [38]-[45] and R v AA at [60]-[65];

7. the offending was not isolated - Counts 1-4 and the two Form 1 offences were representative of other offending that took place over a 13-year period - the sentencing Judge acknowledged correctly that the Applicant could not be sentenced for offences with which he had not been charged, but stated that the Applicant was not entitled to leniency that might otherwise have been afforded had the offences been isolated and that it was appropriate to sentence the Applicant upon the basis that his offending constituted a continuing course of conduct: AK v R [2016] NSWCCA 238 at [66]-[75];

8. it was correct for the sentencing Judge to observe that the actions of the Applicant were not aberrations and could not be regarded as youthful folly - as his Honour found, the Applicant was at the time an untreated and undiagnosed paedophile (ROS9);

9. whilst the Applicant had, to his credit, demonstrated genuine remorse in the lawfully recorded telephone conversations with the victim in 2016 and during the sentencing proceedings in 2018, it was appropriate to observe that remorse and contrition were conspicuously absent at the time of the offending, with the Applicant demonstrating particular callousness in his attitude to the victim in addition to the offending itself;

10. in sentencing the Applicant, the sentencing Judge was obliged to and did have regard to the harm done to the victim: s.3A(g) Crimes (Sentencing Procedure) Act 1999.

133. The sentence indications nominated were substantial, in particular with respect to Counts 3 and 4. However, this was warranted in the circumstances of the case and the quantum of those indications does not bespeak error which infected the aggregate sentence.

134. Further, the aggregate sentence reflected a very substantial degree of notional concurrency for serious offences committed against the victim on different occasions over a significant period of time. The head sentence of 17 years’ imprisonment was open in the circumstances of the case.

135. In fixing a non-parole period of eight years, the sentencing Judge had regard to relevant principles concerning sentencing for historical sexual offences applicable at the time when the offences were committed. The proportion of the head sentence fixed by way of the non-parole period operated significantly in the Applicant’s favour, being 47% of the full term.

136. Comparison with the sentencing outcomes in Magnuson v R and Woodward v R does not assist the Applicant. If anything, this comparison indicates that the aggregate sentence and non-parole period were open in all the circumstances of this case.

137. The Applicant committed very serious sex offences for which he was sentenced in 1987 after the commission of the present offences. The Applicant was no doubt able to present himself at the time of sentence in 1987 as a person with no prior history of sexual offending. The Applicant was able to submit to the sentencing Judge in 2018 that, at the time of the present offences, he had no prior significant criminal history, and none for sexual offences. That statement was accurate as a matter of history.

138. In this way, however, the Applicant received the benefit of being sentenced in 1987 and again in 2018, as if he was a first-time sex offender. It is appropriate to record the fact that the sentencing of the Applicant for these two groups of offences proceeded in this way: WAP v R [2017] NSWCCA 212 at [94], [97].

139. That said, the fact that the Applicant had committed serious and subsequent sex offences did not operate to aggravate sentence for these earlier offences. The commission of later offences allows a sentencing Judge to withhold leniency to which an offender may otherwise be entitled: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [58], [61]. As the sentencing Judge recognised, the commission of later sexual offences assisted a conclusion that the Applicant was an undiagnosed paedophile at the time of both groups of offences, and that the commission of the later set of offences bore upon issues concerning risk of reoffending and his prospects of rehabilitation: Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [131]. Even then, the sentencing Judge made favourable findings with respect to the Applicant’s prospects of rehabilitation.

140. The Applicant has failed to demonstrate that the aggregate sentence of imprisonment in this case was unreasonable or plainly unjust so as to warrant a conclusion that it was it manifestly excessive. The aggregate sentence was a substantial one, but reflected the very grave offences committed by the Applicant against his sister over a period of years.

141. I would reject the third ground of appeal.

Conclusion

142. The Applicant has failed to make good any of his grounds of appeal. Accordingly, no occasion arises for the Court to embark upon the process of resentencing under s.6(3) Criminal Appeal Act 1912 in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

143. In these circumstances, it is not necessary for the Court to determine the operation and application of s.25AA Crimes (Sentencing Procedure) Act 1999 when this Court finds error with respect to sentences passed before the commencement of that provision, but then undertakes the s.6(3) resentencing exercise after the commencement of s.25AA.

144. The application and operation of s.25AA has been considered by this Court, in other contexts: O’Sullivan v R [2019] NSWCCA 261 at [33]-[37], [46] and R v Cattell [2019] NSWCCA 297 at [103]-[126]. However, the interrelationship between s.6(3) Criminal Appeal Act 1912 and s.25AA is the subject of consideration in other proceedings before this Court where judgment is presently reserved.

145. The Applicant’s offending extended over a period when the victim was aged between five and 17 years. Had it been necessary to consider the application of s.25AA in this case, if the provision had been applicable at all in this Court, it would have only applied to a “child sexual offence” (as defined in s.25AA(5)) committed at a time when the victim was under the age of 16 years. That would have meant that general law principles with respect to sentencing for historical sexual offences would have continued to apply to the offence contained in Count 4: cf R v Cattell at [117].

146. However, as the Applicant has not demonstrated error so that his appeal is to be dismissed, it is not necessary for the Court to give further consideration to that aspect.

147. I propose the following orders:

1. grant the Applicant leave to appeal against sentence;

2. appeal against sentence dismissed.

148. CAVANAGH J: I agree with Johnson J.

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Decision last updated: 30 December 2019