GW v R

[2018] NSWCCA 79

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	GW v R [2018] NSWCCA 79
Hearing dates:	16 April 2018
Date of orders:	02 May 2018
Decision date:	02 May 2018
Before:	Hoeben CJ at CL at [1]; Fullerton J at [2]; Davies J at [53]
Decision:	1. Leave to appeal is granted. 2. The appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – applicant entered pleas of guilty to 29 offences contrary to ss 61J(1), 61M(1), 91G(1)(a) and 91H(2) of the Crimes Act 1900 (NSW) – whether the sentence imposed was manifestly excessive.
Legislation Cited:	Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2), 91G(1)(a), 91H(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A Criminal Appeal Act 1912 (NSW), s 5(1)(c) Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited:	DG v R [2017] NSWCCA 139 DV v R [2017] NSWCCA 276 Faehringer v R [2017] NSWCCA 248 Hughes v R [2018] NSWCCA 2 JL v R [2014] NSWCCA 130 Krivosic v R [2017] NSWCCA 167 Obeid v R [2017] NSWCCA 221 Vandeventer v R [2013] NSWCCA 33
Category:	Principal judgment
Parties:	GW (Applicant) The Crown (Respondent)
Representation:	Counsel: S Kluss (Applicant) B Hatfield (Crown)   Solicitors: Ross Hill and Associate Solicitors (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2016/115474
Decision under appeal	Court or tribunal: District Court Date of Decision: 5 July 2017 Before: Buscombe DCJ File Number(s): 2016/115474

Judgment

1. HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.

2. FULLERTON J: The applicant seeks leave pursuant s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence imposed by Buscombe DCJ on 5 July 2017. The sole ground of appeal is the contention that the aggregate sentence is manifestly excessive.

The proceedings on sentence

3. On 22 June 2017 the applicant confirmed pleas of guilty to 29 offences entered in the Local Court on 8 March 2017 as follows:

1. Seven counts of aggravated sexual intercourse with SK, being a child under the age of 16 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW);

2. Eight counts of aggravated indecent assault upon SK, being a child under the age of 16 years contrary to s 61M(1) of the Crimes Act;

3. Twelve counts of using SK, being a child under the age of 18 years, for pornographic purposes contrary to s 91G(1)(a) of the Crimes Act;

4. Two counts of possession of child abuse material contrary to s 91H(2) of the Crimes Act.

4. In respect of one of the counts of aggravated sexual intercourse (Sequence 46 in the tabulated summary below), the Court was asked to take into account a further 26 offences on a Form 1, including:

1. One offence of possession of a prohibited weapon (laser pointer), contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW);

2. Three offences of possession of child abuse material, contrary to s 91H(2) of the Crimes Act;

3. Seventeen offences of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act (also committed against SK);

4. Five offences of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act (also committed against SK).

5. The applicant was sentenced to an aggregate term of imprisonment of 18 years expiring on 14 April 2034, with a non-parole period of 13 years and 6 months. The earliest date on which the applicant may be released to parole is 14 October 2029.

6. By reference to the sequence number of the charges, a summary of the facts relating to the offences to which the applicant entered a plea of guilty and upon which he was sentenced appears in the schedule below. The indicative sentence nominated by the sentencing judge, together with his Honour’s assessment of the objective seriousness of each offence, is indicated in the right hand column. I consider it unnecessary for the purposes of the appeal to refer to the facts underpinning the Form 1 offences. Suffice to say that they reflected additional serious offending (including sexual offending involving SK) which, in my view, well justified the sentence that was indicated for Sequence 46.

Sequence Number and offence	Particulars	Dates of offence & age of complainant	Max. Penalty	Indicative Sentence	Assessment of objective seriousness
Sequence 1 Possess child abuse material contrary to s 91H(2), Crimes Act	DVD bearing the name of the complainant containing 701 images of the applicant engaged in various sexual activities with SK, which included images of cunnilingus, penile vaginal intercourse and images of SK’s breasts.	14/04/2016	10 years	2 years	“Below the mid-range level”
Sequence 6 Possess child abuse material contrary to s 91H(2), Crimes Act	USB drive containing 8617 video files. Estimated number of files containing child abuse material determined to be between 4088 and 7605. Of the 19 of the sample that were classified, one contained sadism or bestiality, nine involved penetrative sexual activity involving children and/or both children and adults, and three involved non‑penetrative sexual activity between a child and an adult, five involved non‑penetrative sexual activity between children or solo masturbation, and one depicted children with no sexual activity.	14/04/2016	10 years	2 years	“Just below the mid-range level”
Sequence 11 Aggravated sexual assault – child under 16 year, contrary to s 61J(1), Crimes Act	This involved fellatio and ejaculation. Having regard to the ambiguity in the agreed facts, the sentencing judge could not find beyond a reasonable doubt that the ejaculation occurred when the applicant’s penis was in SK’s mouth.	Between 12/02/01 & 11/11/01 12-13 years old	20 years	6 years	“A little below the mid-range”
Sequence 12 Aggravated sexual assault – child under 16 years, contrary to s 61J(1), Crimes Act	This involved fellatio resulting in the applicant ejaculating on the bed. Committed while on s 10 bond	Between 21/07/03 & 18/12/031 15 years old	20 years SNPP 10 years	6 years NPP 4 ½ years	“A little below the mid-range”
Sequence 13 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a), Crimes Act	The applicant took 28 photographs which depicted the applicant engaged in sexual activity with SK.	15/01/2003 14 years old	5 years	2 years	“Just below the mid-range”
Sequence 16 Aggravated sexual assault – child under 16 years, contrary to s 61J(1), Crimes Act	This involved cunnilingus.	15/01/2003 14 years old	20 years	5 years	“Below the mid-range”
Sequence 17 Aggravated sexual assault – child under 16 years, contrary to s 61J(1), Crimes Act	Followed upon Sequence 16, it involved penile vaginal intercourse. After the intercourse SK masturbated the applicant until he ejaculated.	15/01/2003 15 years old	20 years	8 years	“Within the mid-range”
Sequence 19 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a), Crimes Act	The applicant took 11 photographs showing himself engaging in sexual activity with SK. Committed while on s 10 bond	07/01/2004 15 years old	5 years	18 months	“Below the mid-range”
Sequence 20 Aggravated indecent assault – child under 16 years, contrary to s 61M(1), Crimes Act	This involved kissing SK’s right breast. Committed while on s 10 bond	07/01/2004 15 years old	7 years SNPP 5 years	18 months NPP 14 months	“Below the mid-range”
Sequence 21 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a) Crimes Act	The applicant took 28 photographs of himself engaging in sexual activity with SK. Committed while on s 10 bond	15/01/2004 15 years old	5 years	18 months	“Just below the mid-range”
Sequence 22 Aggravated sexual assault – child under 16 years, contrary to s 61J(1), Crimes Act	This involved penile vaginal intercourse, and after the intercourse SK masturbated the applicant until he ejaculated. Committed while on s 10 bond	15/01/2004 15 years old	20 years SNPP 10 years	8 years NPP 6 years	“Within the mid-range”
Sequence 24 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a) Crimes Act	The applicant took 15 photographs of himself and SK engaging in sexual activity. Committed while on s 10 bond	21/01/2004 15 years old	5 years	18 months	“Below the mid-range”
Sequence 27 Aggravated indecent assault – child under 16 years, contrary to s 61M(1), Crimes Act	This involved touching of the top of SK’s vagina with his hand. Committed while on s 10 bond	21/01/2004 15 years old	7 years SNPP 5 years	3 years NPP 2 years	“Slightly above the mid-range”
Sequence 29 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a) Crimes Act	The applicant took 55 photographs of himself engaging in sexual activity with SK. Committed while on s 10 bond	14/02/2004 15 years old	5 years	2 years	“Within the mid-range”
Sequence 31 Aggravated sexual assault – child under 16 years, contrary to s 61J(1), Crimes Act	This involved fellatio. Committed while on s 10 bond	14/02/2004 15 years old	20 years SNPP 10 years	6 years NPP 4 ½ years	“Below the mid-range”
Sequence 33 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a) Crimes Act	The applicant took 39 photographs of himself and SK engaging in sexual activity and of SK in various states of undress. Committed while on s 10 bond	16/03/2004 15 years old	5 years	18 months	“Just below the mid-range”
Sequence 35 Aggravated indecent assault – child under 16 years, contrary to s 61M(1), Crimes Act	This involved touching SK on her right breast. Committed while on s 10 bond	16/03/2004 15 years old	7 years SNPP 5 years	18 months NPP 14 months	“Below the mid-range”
Sequence 36 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a) Crimes Act	The applicant took 98 photographs of himself engaging in sexual activity with SK, taken on her 16th birthday.	xx/xx/2004 16 years old	5 years	2 years	“Within the mid‑range”
Sequence 37 Aggravated indecent assault, contrary to s 61M(1), Crimes Act	Occurred when SK was 16 but under the authority of the applicant, it involved the applicant sucking SK’s right breast.	29/04/2004 16 years old	7 years SNPP 5 years	18 months NPP 14 months	“Below the mid-range”
Sequence 39 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a) Crimes Act	The applicant took 9 photographs of SK and himself, in which SK was wearing a bra.	17/05/2004 16 years old	5 years	12 months	“Low end of the mid-range”
Sequence 40 Aggravated indecent assault, contrary to s 61M(1), contrary to Crimes Act	Occurred when SK was 16 but under the applicant’s authority, it involved kissing her right breast.	17/05/2004 16 years old	7 years SNPP 5 years	18 months NPP 14 months	“Below the mid-range”
Sequence 41 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a) Crimes Act	The applicant took 14 photographs of himself engaging in sexual activity with SK.	17/11/2004 16 years old	5 years	12 months	“Below the mid-range”
Sequence 46 Aggravated sexual assault, contrary to s 61J(1), Crimes Act plus 26 additional offences on a Form 1 as identified at paragraph (3)	Occurred when SK was 16 but under the authority of the applicant. It involved penile vaginal intercourse.	17/11/2004 16 years old	20 years SNPP 10 years	Having regards to offences on Form 1: 13 years NPP 10 years	“Within the mid-range”
Sequence 49 Use child 14 > & < 18 years for pornographic purpose, contrary to s 91G(1)(a) Crimes Act	The applicant took 32 photographs of himself engaging in sexual activity with SK.	03/12/2004 16 years old	5 years	12 months	“Just below the mid-range”
Sequence 51 Aggravated indecent assault, contrary to s 61M(1), Crimes Act	Occurred when SK was 16 but under the applicant’s authority, it involved the applicant kissing SK’s pubic hair above her vagina.	03/12/2004 16 years old	7 years SNPP 5 years	3 years NPP 2 years	“Within the mid‑range”
Sequence 54 Use child 14 > & < 18 years for pornographic purposes, contrary to s 91G(1)(a) Crimes Act	The applicant took 2 photographs of himself engaging in sexual activity with SK.	06/12/2004 16 years old	5 years	9 months	“Towards the bottom of the mid-range”
Sequence 55 Aggravated indecent assault, contrary to s 61M(1), Crimes Act	Occurred when SK was 16 but under the applicant’s authority, it involved the applicant having SK hold his penis with both hands and masturbating him.	06/12/2004 16 years old	7 years SNPP 5 years	3 years NPP 2 years	“Within the mid‑range”
Sequence 56 Use child 14 > & < 18 years for pornographic purposes, contrary to s 91G(1)(a) Crimes Act	The applicant took 12 photographs of himself and SK engaged in sexual activity.	07/12/2004 16 years old	5 years	12 months	“Below the mid-range”
Sequence 57 Aggravated indecent assault, contrary to s 61M(1), Crimes Act	Occurred when SK was 16 but under the applicant’s authority, it involved the applicant having SK masturbate him until he ejaculated.	07/12/2004 16 years old	7 years SNPP 5 years	3 years NPP 2 years	“Within the mid‑range”

The facts for sentencing purposes

7. Until the applicant’s arrest on 12 April 2016, the applicant had been in a de facto relation with MM which commenced in the year 2000. The applicant and MM have no children together. SK is the biological daughter of MM.

8. SK was born in 1988. She was in the joint care of the applicant and MM from the commencement of the applicant’s relationship with MM until SK’s 18th birthday. Between the years 2000 and 2003 the applicant, together with SK and MM, resided at various locations in Inverell. Where they resided between 2003 and 2006 is not clear from the agreed facts.

9. In December 2015 investigators associated with the Child Exploitation Internet Unit were notified by the Australian Federal Police that peer-to-peer transfer of child abuse material had been detected and that the internet protocol (IP) address of the parties to the transfer of the material had also been identified. Subsequent investigations revealed that the subject IP address was subscribed to the applicant at an address in Glen Innes.

10. On 14 April 2016 a search warrant was executed at the applicant’s home in Glen Innes. MM was present during the search.

11. During the search a small black portable hard drive which was connected to a personal computer was located and examined. It revealed child abuse material. The applicant was placed under arrest and conveyed to Glen Innes Police Station.

12. The search continued, in the course of which a disc bearing SK’s first name was located. On review of its contents 701 images of the applicant engaged in sexual activity with SK were located, including images of the applicant performing cunnilingus and penetrative sexual acts upon her. Numerous imagines of SK’s breasts and vagina were also included.

13. Evidence the subject of the offences comprising Sequences 13 to 57 was derived from the disc.

14. In addition to the small black portable hard drive and the disc bearing SK’s name, police located an internal hard drive and three portable hard drives, each of which contained further child abuse material summarised as follows:

1. 500GB Samsung external hard disk drive containing 1166 video files. A sample of 279 files revealed 4 files depicting children with no sexual activity, 1 file depicting non-penetrative sexual activity between children or solo masturbation by a child, 5 files depicting non-penetrative sexual activity between children and adults, and 16 files depicting penetrative sexual activity involving children, or both children and adults. The total videos containing child abuse material in the sample was 26, equating to 9.32 per cent of the sample. The number of files containing child abuse material on the device was estimated to range from 63 to 153 files.

2. Western Digital external hard disk drive containing 8617 video files. A sample of 28 videos revealed 1 file depicting a child with no sexual activity, 5 files depicting non-penetrative sexual activity between children or solo masturbation by a child, 3 files depicting non-penetrative sexual activity between children and adults, 9 files depicting penetrative sexual activity involving children or both children and adults, and 1 file depicting sadism or bestiality. The total videos containing child abuse material was 19, equating to 67.86 per cent of the sample. The number of files containing child abuse material on the device was estimated to range from 4088 to 7605.

3. 2TB Seagate external hard disk drive containing 7339 video files. A sample of 153 files was examined. They revealed 3 files depicting children with no sexual activity, 2 files depicting non-penetrative sexual activity between children or solo masturbation by a child, 4 files depicting non-penetrative sexual activity between child and adults, 19 files depicting penetrative sexual activity involving children, or both children and adults, and 3 files depicting sadism or bestiality. The total videos containing child abuse material in the sample was 31, equating to 20.26 per cent of the sample. The number of files containing child abuse material on the exhibit was estimated to range from 891 to 2082.

4. 2TB HP SimpleSave hard disk drive containing 7670 files. A sample of 316 files revealed 1 file depicting children with no sexual activity, 5 files depicting sexual activity between children and adults, 25 files depicting penetrative sexual activity involving children, or both children and adults, and 1 file depicting sadism or brutality. The total videos containing child abuse material in the sample was 32, equating to 10.13 per cent of the sample. The number of files containing child abuse material was estimated to range from 451 to 1101.

15. Evidence the subject of Sequences 9, 10, 11 and 12 (Sequences 9 and 10 included on the Form 1) derived from SK’s statement to police of 9 June 2016.

The sentence proceedings

16. The Crown tendered a set of agreed facts together with the applicant’s criminal and custodial history and a victim impact statement prepared by SK. At the time of writing the statement she was aged 29.

17. The applicant relied upon a report of Laura Durkin, clinical and forensic psychologist, dated 11 June 2017. He did not give evidence on sentence.

Sentencing reasons

18. In his Honour’s assessment of the objective seriousness of the seven counts of sexual intercourse with SK without her consent committed in circumstances of aggravation contrary to s 61J(1) of the Crimes Act, and the eight offences of aggravated indecent assault laid contrary to s 61M(1) of the Crimes Act, his Honour found that each involved a breach of trust since SK was effectively the applicant’s stepdaughter living in a domestic relationship with her mother.

19. His Honour also noted that the sexual offending comprehended by those fifteen offences extended over a period of three years and nine months when SK was aged 12 to 16, with the last offence in time occurring when she was 16. His Honour described that course of conduct as “appalling sexual offending”, there being no basis to doubt that the applicant knew SK’s age at all relevant times. His Honour accepted that in the assessment of objective seriousness the nature of the act of intercourse particularised in respect of each of the s 61J offences was not determinative. Rather, it was the overall circumstances in which those offences were committed that must be considered when objective seriousness was being assessed, although it was generally accepted that offences involving penile penetration are more serious than other forms of intercourse.

20. His Honour found that all offences were aggravated, not only because they involved a breach of trust but because they were all committed in the family home, a place where SK was entitled to feel safe.

18. His Honour regarded the course of offending against SK as productive of an adverse impact likely to be with her for the entirety of her adult life. He found that as a result of the offending, SK had been robbed of much of her childhood by the applicant who his Honour described as a “manipulative sexual predator”.

19. In assessing the objective seriousness of the applicant’s use of SK for pornographic purposes (respectively each of the 12 breaches of s 91G(1)(a) of the Crimes Act), his Honour noted SK’s age, the number of photographs taken, the images represented in the photographs and the applicant’s intention to share the images with others.

20. These various factual findings were then applied in his Honour’s assessment of the objective seriousness of each of the 12 offences in respect of the position they occupied relative to a spectrum of offending comprehended by each of the four categories of offending as set out in the schedule at [6] above.

The applicant’s subjective circumstances

24. His Honour addressed various features of the applicant’s subjective circumstances as follows:

1. He was 44 at the time of sentence, with the offending having traversed three years when he was aged 29 to 32. He was aged 43 at the time of his arrest, at that time being in possession of the child pornography which featured SK.

2. His Honour noted the applicant’s prior criminal history which included, inter alia, convictions in 2003 for committing an act of indecency with a child under 16 and for possessing child pornography, for which he had received community service orders. His Honour determined that the applicant’s criminal history deprived him of any considerations of leniency.

3. A number of offences committed between March 2003 and March 2004 (being Sequences 19 to 35) were committed whilst the applicant was subject to a s 10 bond which operated to aggravate that offending, although not to increase its objective seriousness.

4. His Honour observed, having regard to the detail of Ms Durkin’s report, that there was limited evidence of remorse. It was Ms Durkin’s view that the applicant’s account of his relationship with SK suggested distorted thinking and a process of justification and minimisation of his culpability. Other than stating that he knew that what he was doing was wrong, she considered that in the applicant’s self-analysis his sexual misconduct was condoned.

5. Ms Durkin noted that the applicant’s responses throughout the process of interview did not appear to display thought disorder and his account was logical in structure, form and content. She saw no indication of psychopathology and no evidence of gross cognitive impairment.

6. His Honour accepted that the applicant had, to some degree, lived a life of social disadvantage. He did not regard that state of affairs as having any material impact on the applicant’s moral culpability for the offending or any explanation for his sustained and serious sexual offending over a period of years.

7. His Honour considered the applicant’s prospects of rehabilitation at the time of sentence as poor. He also had regard to Ms Durkin’s assessment of the applicant being in a high-risk category for reoffending, a risk elevated by his likely deviant sexual interests, interpersonal skills deficits, distorted self-analysis and alcohol abuse. His Honour noted Ms Durkin’s assessment that the applicant was likely to be attracted to underage people and to seek sexual gratification by sexual contact with them.

25. On the strength of Ms Durkin’s report, his Honour concluded that in the sentencing exercise considerable weight must be afforded to the need for the community to be protected from the risk of the applicant reoffending.

26. In circumstances where the applicant’s offending proceeded over a period of three years and nine months, with the abuse of SK being serial throughout that period, his Honour considered that weight needed to be given to specific deterrence in the aggregate sentence to be imposed. He noted that general deterrence and denunciation are also recognised principles of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

27. His Honour gave meaningful and due weight to each of the statutory sentencing principles in the following passage:

Sexual offending against children is abhorrent to the Court and to the community. The courts are, regrettably, confronted by such appalling criminality on a frequent basis. Young and teenage children are entitled to grow into adults without being sexually preyed upon by sexual predators like the offender. The sentences that are to be imposed must be severe to deter this offender and others from such crimes.

28. In applying totality principles and the need, given the large number of offences, for a significant degree of accumulation, albeit modified to ensure against the imposition of a crushing sentence, whilst at the same time conscious of the need to impose an aggregate sentence reflective of the nature of the offending and its repetition over an extended period of time, his Honour imposed an aggregate sentence of 18 years imprisonment with a non-parole period of 13 years and 6 months. He declined to make a finding of special circumstances.

The sentence appeal

29. The only challenge to the sentence is the contention that it is manifestly excessive.

30. The applicant’s counsel submitted that the sentence is “extremely high” when regard is had to a number of indicators, including:

1. An assessment of objective seriousness of the offences which were, in the majority, at or below the mid-range;

2. The early plea of guilty;

3. SK was over the age of 10 years when the offending commenced;

4. She was the only victim of the applicant’s offending;

5. There was no pregnancy;

6. There was no evidence of the infliction of violence in the perpetration of any of the offences;

7. There was an identified background of social deprivation suffered by the applicant.

31. This approach by counsel to making good the contention that the aggregate sentence was unreasonable or plainly unjust is flawed. This Court has repeatedly observed that the objective gravity of an offence is not assessed by the absence of features which would elevate the particular offending into a different category of seriousness. Insofar as (c) is concerned, were SK under the age of 10 years an offence pursuant to s 66A of the Crimes Act would have been charged attracting a maximum sentence of imprisonment for life and a standard non-parole period of 15 years.

32. In Faehringer v R [2017] NSWCCA 248 at [49], Wilson J (with whom Macfarlan JA and Beech-Jones J agreed) said as follows:

That no violence or threat of violence was alleged against the applicant is why he does not stand charged with more serious offences; it cannot operate to make the charged offences less serious.

33. Her Honour’s remarks have direct application to this case, depriving the applicant’s submission of any weight. Her Honour continued:

[50] This Court has expressed that principle on numerous occasions. Most recently, in R v CTG [2017] NSWCCA 163, this Court allowed a Crown appeal where the sentencing judge had erroneously concluded that sexual assault offences were less serious because of the absence of violence. At [60]-[63] Hoeben CJ at CL (with whom RA Hulme J and I agreed) said:

“It was not appropriate for his Honour to take into account the absence of actual bodily harm and the absence of force and coercion as matters in mitigation of the offending so as to impact directly upon an assessment of objective seriousness.

If there were any doubt on that issue, it was clarified in such decisions as Bravo v R [2015] NSWCCA 302 and Mills v R [2017] NSWCCA 87.

In Bravo v R, R A Hulme J (Beazley P and Johnson J agreeing) said:

‘45   … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452:

“[3]    It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse”.’

In Mills v R, R A Hulme J (Leeming JA and Beech-Jones J agreeing), in addition to referring again to Grove J’s statement in Saddler, said:

‘57   Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done by an offender less serious because it could have been worse”.’

[51] Further, the victim in this matter had been groomed for sexual activity from a young age. Part of her vulnerability to the sort of exploitation visited upon her by the applicant was her age, and her utter dependence upon the applicant, both of which made it impossible for her to act for her own protection.

[52] The applicant did not need to use violence or the threat of it to obtain the complainant’s compliance; her age and isolation from other adults who might protect her, and the nature of the relationship with the applicant, left her with no option other than compliance. The applicant can hardly rely upon that feature of his crimes to argue for a lesser sentence.

[53] This aspect of the applicant’s complaint has no merit.

34. The same conclusion follows the applicant’s reliance on the absence of any infliction of violence and, by necessary extension, the fact that SK did not become pregnant after multiple occasions of penile penetration.

35. The principles that are to be applied in determining whether a sentence is manifestly excessive are frequently restated by this Court, most recently in Hughes v R [2018] NSWCCA 2, where the Court (comprising Payne JA, RA Hulme and Garling JJ) referred to a line of seminal High Court authority, and another recent decision of this Court (comprising Bathurst CJ, Leeming JA, RA Hulme, Hamill, and N Adams JJ) in Obeid v R [2017] NSWCCA 221, which confirmed application of the same principles. In Hughes, five propositions were identified which must be confronted where a sentence is said to be manifestly excessive. At [86] Payne JA listed those factors as follows:

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]:

(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2) 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;

(3) it is not to the point that this Court might have exercised the sentencing discretion differently;

(4) 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; and

(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

36. Although this Court has recognised that an indicative sentence, whilst not itself amenable to appeal, may be an indicator of a manifestly excessive aggregate sentence, and although the applicant did submit that Sequence 46 was of that character, given that the indicative sentence comprehended the offences on the Form 1, an indicated sentence of 10 years, whilst severe, was not erroneously so.

37. In further support of the applicant’s claim that the sentence imposed is manifestly excessive, the applicant seeks to rely upon the following:

1. The contention that JIRS sentencing statistics indicate that the sentence imposed “sits at the top 95% of total term of the s 61J aggregated offences and the non-parole period in the top 91% of the sample size of 155”;

2. That in two cases, being DG v R [2017] NSWCCA 139 and JL v R [2014] NSWCCA 130, each of which involved serious offences and higher maximum penalties, the same sentence resulted as that imposed on the applicant;

3. A schedule prepared by the Public Defender’s office, which is said by the applicant to reflect “many of the decisions in this area”.

38. To the extent that the applicant invites a comparison between the aggregate sentence imposed on him with sentencing statistics which record effective sentences imposed for breaches of s 61J(1), that comparison is flawed. The aggregate sentence imposed in this case involves not only seven breaches of s 61J(1) but a multiplicity of other offending including, as I repeat for emphasis, eight breaches of s 61M(1), twelve breaches of s 91G(1)(a) and two breaches of s 91H(2), with an additional 26 offences on a Form 1, all of which, save for one offence, involves offending of a sexual nature, with some limited to possession of child pornography.

39. Given the need for totality principles to be considered when an aggregate sentence is under challenge, as N Adams J observed in DV v R [2017] NSWCCA 276 at [277], the relevant JIRS statistics, which are confined to the principle offence for which a person has been sentenced, provide little assistance.

40. In Krivosic v R [2017] NSWCCA 167, the use of undigested sentencing data was described by RA Hulme J in that case as unhelpful. The superficial comparison the applicant sought to make from the broad range of 100 case summaries in the Public Defender’s Schedule was similarly unhelpful and did nothing, in my view, to advance the applicant’s claim that the aggregate sentence imposed by the sentencing judge was unreasonably excessive or disproportionately severe relative to the range and number of offences comprehended by it.

41. To the extent that it bears repetition, consistency in sentencing calls for consistency of the application of sentencing principle, not of numerical equivalence. Prior sentencing decisions may establish a range of sentences imposed for particular offending, without establishing that the range is correct, or the upper or lower limits of sentences that might be imposed within that notional range.

42. The comparisons sought to be drawn between the sentence imposed in this case and the sentences imposed in the two cases nominated by the applicant as in some meaningful way comparable, do not, on even a cursory analysis, bear out that submission.

43. In DG, the applicant pleaded guilty to three counts of aggravated indecent assault contrary to s 61M(1) and one count of aggravated sexual assault contrary to s 61J(1). There were two further counts of aggravated sexual intercourse with child between 14 and 16 on a Form 1. The applicant committed the sexual offences against his stepdaughter when she was between 11 and 16 years old. The applicant was sitting next to her watching television when he moved his hand up her leg and started rubbing her vagina on the outside (s 61M(1)). Almost two years later, the victim was lying on a mattress when the applicant lay down next to her and started rubbing her vagina on the outside of her clothing (s 61M(1)). He then removed his pants and the victim’s underwear and had penile/vagina intercourse for fifteen minutes until he ejaculated into his hand (Form 1). Two years later, the applicant took the victim to a motel and touched her all over her body (s 61M(1)) before having penile/vaginal intercourse with her for ten minutes throughout which she was crying and in pain (Form 1). A few months later the applicant pushed the victim onto her bed and had penile/vaginal intercourse with her while she screamed and kicked her legs to stop him (s 61J(1)).

44. Allowing for a discount of 25 per cent for the plea, the applicant was sentenced at first instance to an aggregate term of 15 years with a non-parole period of 11 years. The applicant was 48 years of age at the time of sentence. The sentencing judge found the applicant had little insight into the seriousness of the offending and that his prospects of rehabilitation were no more than reasonable. The applicant suffered from a back problem and a major depressive disorder. On appeal this Court held that the sentencing judge had not given proper effect to his finding of special circumstances and the applicant was re-sentenced to give effect to that finding. A term of 15 years with a non-parole period of 10 years was imposed.

45. In JL, the applicant pleaded guilty to 21 sexual offences (and seven further offences on a Form 1) against his daughter when she was aged between 7 and 11 years. The most serious offences were laid contrary to s 66A(2) of the Crimes Act, involving fellatio followed by penile/vaginal intercourse when the child was 9 years of age. Additionally, there were five offences of sexual intercourse with a child under the age of 10 years contrary to s 66A of the Crimes Act and one of attempting to commit that offence contrary to s 66B of the Act.

46. There was little in JL’s subjective case, other than having been sexually abused as a child, which was relevant to sentence. It does however appear that there was some assistance given to the authorities. By comparison, the applicant’s subjective circumstances carried little, if any, mitigating weight and he had a record which disentitled him to leniency.

47. JL was sentenced to an aggregate term of imprisonment of 18 years with a non-parole period of 13 years and 6 months. The appeal against the severity of the sentences was dismissed. McCallum J (Hoeben CJ at CL and Harrison J agreeing) noted (at [54]):

The starting point for the aggregate sentence of 24 years before the allowance of a discount of 25 per cent to reflect the utilitarian value of the early pleas of guilty was not excessive, in my view.

48. Again as has been repeatedly emphasised by this Court, there will always be cases where an offender appears to have been dealt with more leniently than an applicant whose sentence is said to be excessive. Similarly, the Crown will also be able to find cases supporting the contrary proposition. That is not, however, the way in which this Court determines whether a sentence is manifestly excessive. A search for, and comparison with, sentences passed in other cases is rarely helpful and is, in any event, contrary to settled authority (see Vandeventer v R [2013] NSWCCA 33 at [45]).

Conclusion

49. The applicant was sentenced in relation to 55 separate offences, the objective seriousness of many of them clearly warranting the indicative sentences his Honour imposed after discounting each of them by 25 per cent for the plea of guilty. The applicant’s subjective case did not carry any mitigatory weight, whilst the need for specific and general deterrence featured prominently.

49. The principle of totality was recognised as obligating his Honour to moderate to a significant degree the aggregate sentence that would otherwise be imposed were there to be a graduated accumulation of sentences, with that approach balanced against the need for public confidence in the administration of justice being maintained to avoid any suggestion that a sentencing discount is a consequence of multiple offending. His Honour’s sentencing approach was sound and entirely consistent with sentencing principle.

50. I am not persuaded that the aggregate sentence imposed, whilst stern, has been shown to be unreasonable or plainly unjust such as to warrant this Court’s intervention.

51. The orders I propose are:

1. Leave to appeal is granted.

2. The appeal is dismissed.

53. DAVIES J: I agree with Fullerton J.

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Decision last updated: 02 May 2018