Harden v The King

[2024] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Harden v R [2024] NSWCCA 184

Hearing dates:

17 May 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Before:

Harrison CJ at CL at [1];
Hamill J at [4];
N Adams J at [12].

Decision:

(1) Grant leave to appeal against sentence.

(2) Allow the appeal in part.

(3) The aggregate sentence imposed for the nine Commonwealth offences (with two additional offences on a s 16BA schedule) is confirmed (commencing on 8 May 2020 and expiring on 7 November 2025).

(4) The aggregate sentence imposed for the 105 State offences (with the 63 additional offences on a Form 1) of imprisonment of 27 years is varied to commence on 8 November 2022 and expire on 7 November 2049 with a non-parole period of 19 years to commence on 8 November 2022 and expire on 7 November 2041.

(5) The total effective sentence of imprisonment is 29 years and 6 months commencing on 8 May 2020 and expiring on 7 November 2049 with a non-parole period of 21 years and 6 months commencing on 8 May 2020 and expiring on 7 November 2041.

(6) The earliest date the offender will be eligible for release to parole is 7 November 2041.

Catchwords:

CRIME – Appeals – appeal against sentence – Commonwealth and State offences – large number of child sexual assault offences – child abuse material – multiple victims – whether incorrect maximum penalty applied for some of the Commonwealth offences – whether error in indicative sentences for State offences – whether aggregate sentence for State offences manifestly excessive – no error in indicative sentences – no manifest excess – error by applying incorrect maximum penalty for some indicative sentences for Commonwealth offences – resentence for Commonwealth offences – slight adjustment to effective sentence applying totality principle

Legislation Cited:

Crimes Act1900 (NSW), ss 66A(1), 66C, 66DA(a), 66DA(b), 66DC(a), 61J, 61M(2), 91G(1)

Crimes Act 1914 (Cth), s 16BA

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Measures) Act 2020 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1),(2), 45(1), 55(1),(2),(4), 53A(2)

Criminal Code Act 1995 (Cth), ss 474.24A(1)(a)(iii), 474.22(1)(a)(iii), 474.22(1)(a)(iv), 474.22A(1), 474.23(1)

Cases Cited:

AJ v R [2023] NSWCCA 158

Andreata v R [2015] NSWCCA 239

Benn v R [2023] NSWCCA 24

Bisiker v R [2022] NSWCCA 110

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

DL v R (2018) 265 CLR 215; [2018] HCA 32

GG v R [2023] NSWCCA 102

Haines v R [2021] NSWCCA 149

House v The King (1936) 55 CLR 499; [1936] HCA 40

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

KS v R [2024] NSWCCA 147

Lyons v R [2017] NSWCCA 204

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Minehan v R [2010] NSWCA 140; (2010) 201 A Crim R 243

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

PN v R [2024] NSWCCA 86

R v AGR (unrep, 24/7/1998, NSWCCA)

R v Engert (1995) 84 A Crim R 67

R v Gavel [2014] NSWCCA 56; 239 A Crim R 469

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294

RA v R [2024] NSWCCA 149

RO v R [2019] NSWCCA 183

Tenenboim v R [2024] NSWCCA 1

Turner v R [2021] NSWCCA 5

Category:

Principal judgment

Parties:

Grant Harden (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Avenell SC (Applicant)
S Traynor (Respondent)

Solicitors:
Legal Aid of NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/00138366

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 May 2023

Before:

Huggett DCJ

File Number(s):

2020/0138366

HEADNOTE

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

Grant Harden sought leave to appeal against two aggregate sentences imposed by Judge Huggett (as her Honour then was) in the District Court on 13 May 2022. The applicant was arrested on 8 May 2020 and has remained in custody since that date. He pleaded guilty in the Local Court and was ultimately sentenced in relation to 105 offences under the Crimes Act 1900 (NSW) and nine offences under the Criminal Code Act 1995 (Cth).

The State offences included (but were not limited to) 26 offences of sexual intercourse with boys under 10 years of age, 35 offences of sexually touching boys under 10 years of age and 11 offences of using children under 14 years to produce child abuse material. A further 63 State offences were taken into account in sentencing. The State offences related to seven boys, who were related to the applicant or involved in a soccer team of which the applicant was the coach. The Commonwealth offences included offences of using a carriage service to transmit child abuse material, advertising such material. The applicant was entitled to a 40% discount for his plea of guilty and post offence conduct. He had no prior offences on his record and was diagnosed with paedophilia, a condition from which he knew he suffered when he took on the role of coaching an under six soccer team. The offences were of an extreme nature and the child abuse material of a most shocking kind.

Judge Huggett imposed an aggregate sentence of 5 years and 6 months for the Commonwealth offences and a partially accumulated aggregate sentence of 27 years with a non-parole period of 19 years for the State offences. The total effective sentence was 30 years with a non-parole period of 22 years.

The applicant raised three grounds of appeal which contended in summary:

(i)    The wrong maximum penalty was applied to five of the Commonwealth offences.

(ii)   The sentencing Judge did not differentiate between the facts of the State offences and imposed identical sentences depending on the nature of the sexual intercourse involved.

(iii)    The aggregate sentence for the State offences was manifestly excessive.

The Court held (N Adams J, Harrison CJ at CL and Hamill J agreeing), granting leave to appeal, allowing the appeal, and exercising the sentencing discretion afresh:

1. In relation to ground 1, the sentencing Judge was provided with the wrong maximum penalty by the Prosecutor which was not corrected by the lawyers appearing for the applicant. In the result, the proceedings miscarried, ground 1 was established and it was necessary to re-sentence the applicant in relation to the Commonwealth offences.

   Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, Andreata v R [2015] NSWCCA 239 and Benn v R [2023] NSWCCA 24 applied.

2. In relation to ground 2, the sentencing Judge differentiated between the counts insofar as the evidentiary material allowed her to do so. The material tendered lacked detail and her Honour commented on this. No error was established under ground 2.

3. In relation to ground 3, the offending was prolific, repetitive, and involved an egregious breach of trust in relation to seven children and their parents. The applicant’s subjective case was limited and his lack of prior convictions was not a mitigating factor in the circumstances. There was a need for a significant custodial sentence. While the aggregate sentence for the State offences was “stern”, it was neither unreasonable nor plainly unjust. Ground 3 was rejected.

   DPP (NSW) v TH [2023] NSWCCA 81 applied.

4. In re-sentencing for the Commonwealth offences, the court would have imposed somewhat higher indicative sentences, but the aggregate sentence was the same as that imposed by the sentencing Judge. A slight adjustment to the commencement date was made to allow for an extra period of six months concurrency.

5. In the result, the total effective sentence was reduced by a period of six months.

JUDGMENT

1. HARRISON CJ at CL: I have had the considerable advantage of reading in draft the detailed and comprehensive judgment of her Honour Natalie Adams J. I agree with her Honour’s conclusions and with the orders she has proposed.

2. It will be apparent that her Honour has chosen in the circumstances of this case to endorse and apply the trial judge’s approach extensively to recite the facts that give rise to the multiplicity of counts of sexual or indecent conduct by the applicant against seven male children and the production, solicitation, advertisement and transmission of child abuse material between late 2017 and May 2020. The full extent of the applicant’s criminality could not be comprehended otherwise. I agree with her Honour’s characterisation of the applicant’s offending as appalling and depraved.

3. Although the facts of this offending make for uncomfortable and distressing reading, this Court should not attempt in a case such as this, for fear of potentially causing alarm, to draw back from publishing the details of the kind of behaviour for which the applicant was sentenced and against the length of which sentence he now appeals. In terms of general deterrence, if not more broadly, no-one in the community ought to be in any doubt about the consequences of committing crimes of this type against children or about the reasons why the sentence imposed in the Court below was not excessive.

4. HAMILL J: I enjoy the great advantage of having read the draft judgment of N Adams J and am grateful for her Honour’s comprehensive summary of the facts and findings of the learned sentencing Judge and careful analysis of the legal issues that arise on this appeal. I have also read the short concurring judgment of Harrison CJ at CL.

5. I agree with N Adams J that ground 1 should be upheld and that the Court must move to re-sentence in relation to the Commonwealth offences. I also agree that grounds 2 and 3 are not established. Subject to what follows, I agree with the reasons provided by N Adams J. The matter upon which I will write briefly is not determinative of the outcome, arose during oral argument, and was then subject to notes provided by counsel after the hearing. While I make these separate observations, I do not perceive there is very much between N Adams J and me on this issue.

6. The matter concerns the issue of totality and the utility – or “inutility” as it was put by Senior Counsel for the applicant – of adding up the individual indicative sentences and then comparing the accumulated number of years thereby derived with the aggregate sentence imposed. Other than in a case with a very small number of counts (say 2 or 3), I am not persuaded that this arithmetic process is of any assistance to an appellate court in reaching a conclusion as to whether an aggregate sentence is manifestly excessive. Nor do I believe that such a process assists in determining whether or not the principle of totality was properly applied by the primary Judge. N Adams J accepts at [385] that “there are limitations in adopting an arithmetic approach to ascertaining the degree of notional concurrence in an aggravated sentence”.

7. In her helpful if rather blunt note, Senior Counsel for Mr Harden submitted:

4.   In many cases with a number of offences for sentence – and it would not even take a case such as this, with many very serious offences – the total of the indicative sentences could easily reach some draconian length of time. Here, Adams J added them up to something in excess of 400 years. (Without the utilitarian discount, it would have been more than 650 years.) This is more than 15 times Mr Harden’s age and probably five times his life expectancy. But what difference would it make, to any assessment of criminality and the proper sentence to flow from that, if the total were 300 or 200 or only 100 years?

5.   There is no, and it is very doubtful there could be, an expected relationship between the total of the indicative sentences and the aggregate sentence imposed for them. (For example, that the aggregate sentence must or should be 25% or 50% or 75% of the total of the indicative sentences.) In the absence of such a relationship, calculating the total of the indicative sentences could probably only be for the purpose of attempting to demonstrate to the offender that he or she received a great outcome through the difference between the total of the indicative sentences and the aggregate sentence. But that is no measure of the total criminality involved nor the propriety of the aggregate sentence.”

8. I agree with those submissions. I also agree that the submission reflects the principles of totality discussed in cases such as Nguyen v The Queen (2016) 256 CLR 656 at [37], [39] (Bell and Keane JJ), [61]-[64] (Gageler, Nettle and Gordon JJ) and R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]-[16].

9. N Adams J undertook a similar exercise in GG v R [2023] NSWCCA 102 at [90] and in R v Stefanac [2022] NSW CCA 129 at [67]-[68]. As I have said, I doubt this is a helpful exercise other than in a case where there are so few counts that the degree of notional accumulation and concurrence can, more or less, be discerned. Sentencing, including the proper application of principles of totality, is more intuitive and instinctive than such a mechanical approach allows. In Stefanac, N Adams J and I reached different conclusions on the issue of totality, with Beech Jones CJ at CL agreeing with her Honour. However, our different conclusions had little to do with this aspect of her Honour’s reasons. Neither the then Chief Judge nor I referred to this part of the judgment.

10. More importantly, I agree with N Adams J that the sentencing Judge in the present case did not err in her application of the totality principle in settling on the aggregate sentence for the state offences. The sentencing Judge stated the principle clearly and correctly and the outcome does not suggest a latent error in the application of the principle. I agree with N Adams J, for the reasons her Honour provides, that the sentencing Judge did not err in failing to differentiate between the offending (ground 2) and that the aggregate sentence imposed for the state offences was not manifestly excessive (ground 3).

11. As to re-sentencing, I agree with the orders proposed by N Adams J which involve no more than a six-month adjustment to the commencement date of the sentence for the state offences. The aggregate sentences remain the same as those imposed in the District Court. This was a remarkably serious course of criminal conduct. There were multiple victims, egregious breaches of trust of seven children and their families, profound impact on the known victims, and a level of moral and libertine wickedness that the Court rarely encounters. As distressing as they are to recount and to read, it was appropriate that her Honour set out in detail the terrible facts of this case to explain why, even after a substantial discount is applied to the indicative sentences, the total accumulated sentence is as severe as it is.

12. N ADAMS J: The applicant seeks leave to appeal against two aggregate sentences imposed upon him on 13 May 2022 by Judge Huggett (as her Honour then was) at the District Court in Sydney. The applicant was arrested on 8 May 2020 and has been in continuous custody since that date.

13. The applicant pleaded guilty in the Local Court to very serious sexual offending against young boys, the production, advertising and publication of child abuse material and the possession of child abuse material including violent sexual assaults on babies and toddlers. One of the victims was his stepson and another was his nephew. Others were members of the soccer team he coached. The offending comprised sexual or indecent conduct by the applicant against seven male children, and the production, solicitation, advertisement and transmission of child abuse material between late 2017 and May 2020.

14. To describe the extent of the applicant’s depraved behaviour as appalling would be an understatement. The applicant was not in a position to deny the offending because most of the time after he sexually assaulted Child 1 he digitally recorded the abuse, published it online as child abuse material, used the recording of him abusing the children to trade child abuse material with other offenders and also encouraged other likeminded offenders to obtain more explicit child abuse material in relation to children they had access to by agreeing to perform requested acts on his own stepson. He left a long digital trail.

15. The applicant ultimately pleaded guilty to:

1. 105 offences contrary to the Crimes Act1900 (NSW) (“Crimes Act”). They included:

1. 26 offences of sexual intercourse with a child under the age of 10 years contrary to s 66A(1) with a maximum penalty of life imprisonment and a standard non-parole period (SNPP) of 15 years imprisonment;

2. 35 offences of sexually touching a child under the age of 10 years contrary to s 66DA(a) with a maximum penalty of 16 years imprisonment and a SNPP of 8 years imprisonment;

3. 3 offences of inciting a child under the age of 10 years to sexually touch a person contrary to s 66DA(b) with a maximum penalty of 16 years imprisonment and a SNPP of 8 years;

4. 22 offences of carrying out a sexual act with or towards a child under the age of 10 years contrary to s 66DC(a) with a maximum penalty of 7 years imprisonment;

5. 8 offences of indecent assault of a person under the age of 16 years contrary to s 61M(2) with a maximum penalty of 10 years imprisonment and a SNPP of 8 years imprisonment;

6. 11 offences of using a child under the age of 14 years for the production of child abuse material contrary to s 91G(1) with the maximum penalty of 14 years imprisonment and a SNPP of 6 years imprisonment.

2. In addition to these 105 offences, the applicant asked that 63 further State offences be taken into account on 36 separate Forms 1. [1] Of these offences, 33 were contrary to s 66DA(a), one was contrary to s 66DA(b), 16 were contrary to s 66DC(a) and 13 were contrary to s 61M(2).

   1. s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3. Nine offences were contrary to the Criminal Code Act 1995 (Cth) (“Criminal Code”). They included:

1. five offences of transmitting CAM using a carriage service in circumstances of aggravation, namely involving transmissions on three or more occasions and two or more people contrary to s 474.24A(1)(a)(iii) with the maximum penalty of 25 years imprisonment;

2. one offence of transmitting CAM using a carriage service contrary to s 474.22(1)(a)(iii) with the maximum penalty of 15 years imprisonment;

3. one offence of advertising CAM using a carriage service contrary to s 474.22(1)(a)(iv) with the maximum penalty of 15 years imprisonment;

4. one offence of possessing CAM obtained using a carriage service contrary to s 474.22A(1) with the maximum penalty of 15 years imprisonment;

5. one offence of producing CAM for use through a carriage service contrary to s 474.23(1) with the maximum penalty of 15 years imprisonment.

4. Two offences contrary to ss 474.24A(1)(a)(iii) and 474.22A(1) were put on s 16BA schedules. [2]

   2. s 16BA of the Crimes Act 1914 (Cth).

16. In addition to pleading guilty in the Local Court, his post arrest conduct was such that he received a 40% discount on his sentence. Apart from that factor, the applicant did not present a compelling subjective case on sentence. Although he exhibited remorse, he had limited insight into his offending. Although he had no criminal history at the time of sentence, that was not a mitigating factor in the circumstances. He was raised in a loving family and did well at school. He has no cognitive impairment or mental illness besides having been diagnosed with paedophilia. He knew he suffered from paedophilia when he became the stepfather to the four-year-old victim and when he chose to coach the under six-soccer team.

16. The sentencing judge was confronted with a highly complex sentencing task. Not only was she required to sentence the applicant for 114 separate offences (and take into account another 38 charges on multiple schedules), she was required to balance that significant criminality as against the subjective factors to which I have referred. Even having regard to the 40% discount, it was inevitable that a significant term of imprisonment would be imposed.

17. For the State offences the applicant was sentenced to an aggregate sentence of 27 years imprisonment commencing on 8 May 2023 and expiring on 7 May 2050 with a non-parole period of 19 years and an aggregate sentence of 5 years and 6 months imprisonment commencing on 8 May 2020 and expiring on 7 November 2025 for the Commonwealth offences for which no non-parole period was set.

18. Allowing for some concurrence the applicant’s effective sentence was a non-parole period of 22 years commencing on 8 May 2020 and expiring on 7 May 2042 and a head sentence of 30 years imprisonment expiring on 7 May 2050.

GROUNDS OF APPEAL

20. The applicant raises the following three grounds of appeal:

Ground 1:   Her Honour applied an incorrect maximum penalty to five of the nine Commonwealth offences resulting in error in the Commonwealth aggregate sentence;

Ground 2:   For the most part, Huggett DCJ did not differentiate the facts of the sexual intercourse offences, beyond the nature of the intercourse; and indicated identical sentences for these offences, depending on the nature of the intercourse.

Ground 3:   The aggregate State sentence is manifestly excessive, in particular because the indicative sentences are excessive.

21. As for Ground 1, regrettably, the sentencing judge was provided with an incorrect maximum penalty for five of the nine Commonwealth matters. The error was contained in the Crown sentencing summary and not corrected by the applicant’s legal representatives. The Crown properly conceded that, consistent with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, such error requires this Court to re-sentence the applicant in relation to the Commonwealth offences. That concession was properly made for reasons to which I will return.

22. The applicant addressed Grounds 2 and 3 together. The nub of this application for leave to appeal is that even having regard to the applicant’s considerable criminality and the multiplicity of charges he faced, the effective aggregate sentence imposed was “unreasonable or plainly unjust”.

Leave

23. The applicant initially filed a Notice of Intention to Appeal on 31 May 2022, which expired on 31 May 2023. The Notice of Appeal was not filed until February 2024. Accordingly, the applicant requires leave to appeal out of time. The Crown did not oppose leave being granted.

Preliminary observations

24. The reasons of the sentencing judge were detailed and set out the offending behaviour as contained in the Agreed Facts. They are not available on Caselaw (as is often the case for District Court sentencing reasons). Although her Honour was required to read out her reasons in open court, there was one portion she did not read out due to its distressing nature. Given that this judgment will be published on Caselaw a question arises as to whether it is necessary to include the same degree of detail in the Agreed Facts as her Honour did.

25. Courts are put in a difficult position when sentencing serious child abusers such as the applicant. In the interests of open justice, the court is required to publish its reasons for imposing any sentence, but describing the child abuse material in this appeal will no doubt cause distress to some readers.

26. I have arrived at the conclusion that it is necessary to include the contents of the Agreed Facts for each count, including the applicant’s online exchanges with other child abuse material users, for a number of reasons. First, as stated above, some of the more distressing facts relate to the Commonwealth offences in relation to which this Court will be required to re-sentence the applicant. Secondly, there is public interest in setting out the details of the offending behaviour in order to understand why such a high sentence was imposed and why it is said to be manifestly excessive. Thirdly, as her Honour noted in her reasons, the applicant’s lack of insight into his offending is apparent from his attempts in cross examination to downplay his interest in the child abuse material which included the violent sexual abuse of babies and toddlers. His evidence sits uneasily with the conversations he had with other likeminded offenders necessitating the need to recount some of those conversations.

27. Finally, it is necessary to extract the Agreed Facts as they appear in the Remarks on Sentence for every count in order to address Ground 2. Part of that ground is a complaint about the lack of differentiation between the findings and indicative sentences on the 105 counts when regard is had to the facts of each of those offences.

Child abuse material

28. None of the child abuse material (referred to by the sentencing judge by the acronym CAM) was tendered, rather the Interpol Baseline Categorisation Scale was used to differentiate between different types of illegal and non-illegal CAM. The categories are:

1. Category 1 CAM which encompasses material involving a real prepubescent child under 13 years of age involved in a sex act, witnessing a sex act, or the material is focused or concentrated on the anal and/or genital region;

2. Category 2 CAM which encompasses material involving a real prepubescent child under 18 years of age but not younger than 13 years of age involved in a sex act, witnessing a sex act or the material is focused or concentrated on the anal and/or genital region; and

3. Categories 3 and 4 encompass respectively non-illegal material indicative of an interest in children and ignorable material such as adult pornography and bestiality with adults.

The material before the sentencing judge

29. The proceedings on sentence were conducted on 3 February 2022. They were adjourned for submissions until 7 February 2022. The proceedings were then adjourned for sentence until 21 April 2022 but then adjourned until13 May 2022.

30. The Crown sentence bundle was tendered on 3 February 2022 and included the following documents:

1. Crown sentence summary;

2. Notice of Committal dated 1 July 2021;

3. An amended Charge Certificate dated 4 June 2021 (22 pages) listing the charges to which the applicant pleaded guilty in the Local Court;

4. Agreed Facts dated 29 June 2021 plus undated Supplementary Agreed Facts (62 pages);

5. Annexures A-J to the Agreed Facts excluding annexures B, D and F (33 pages);

6. The 38 Forms 1 (71 pages);

7. The s 16BA Forms (5 pages);

8. An updated master copy of the table of offences (58 pages);

9. A letter from the AFP and undertaking and statement (not part of the appeal book).

31. In addition, Victim Impact Statements were tendered from the parent or parents of Children 1, 2 and 4.

32. The applicant relied upon three expert reports:

1. Dr Emma Collins Psychologist dated 30 September 2021;

2. Dr Richard Furst, psychiatrist, dated 21 January 2022; and

3. Supplementary report of Dr Richard Furst, dated 28 January 2022.

33. The applicant provided a handwritten letter to the court. He also gave evidence at the proceedings on sentence and was cross-examined.

34. MFI 5 in the appeal book (pages 629 to 752) was a series of emails between the parties and her Honour’s associate seeking clarification of details in the various schedules tendered on sentence after she reserved.

The facts

35. The sentencing judge found the facts comprising the offending from the above documents. Given the sheer number of charges, the Agreed Facts pertaining to each individual offence was in relatively brief terms. It is important to note that her Honour did not summarise any of the facts of any of the sexual assault offences; rather, she extracted all of the details provided in relation to each offence in the Agreed Facts in full. Given that her Honour was conscious to consider each charge separately, she was alive to the fact that the lack of detail in the Agreed Facts might make that difficult. In that regard, her Honour noted the following at [43]:

“Despite the length of the agreed facts, I feel it necessary to observe that no electronic evidence has been tendered and some of the offence descriptions are very bare and lacking in detail. That makes it difficult for me to distinguish between the objective criminality of some of the offences and in turn the appropriate indicative sentences. Where there is ambiguity, it has been resolved in the offender’s favour.”

36. I propose to summarise her Honour’s reasons in some detail in order to set out the relevant objective and subjective factors before turning to consider the respective submissions. It is unavoidable that this summary will be lengthy to reflect the material before her Honour.

Remarks on sentence

37. Her Honour sentenced the applicant on 13 May 2022.

38. I propose to use the word “applicant” rather than “offender” for consistency when recounting the findings of the sentencing judge verbatim. Otherwise, I have used the same footnotes and largely the same language as her Honour did, although I have summarised and re-worded portions of the reasons.

39. Her Honour commenced her reasons by noting that the seven young male victims would be referred to as Child 1, Child 2 etc. At the relevant time, Child 1 was the applicant’s stepson and Child 7 was his nephew. Child 2 through to Child 6 were friends of Child 1 (and Child 3 and Child 6 are brothers). The applicant was also the soccer coach of Child 1, Child 2, Child 3 and Child 5.

40. Her Honour then provided a document headed “Table A” which sets out for each offence the sequence number, the short form of the offence and relevant section of the Crimes Act or Criminal Code under which the offences were laid, the maximum penalty and for the state offences and any applicable standard non-parole period. I have incorporated the contents of that schedule into these reasons for ease of reference.

41. Her Honour then made a number of general observations relevant to the sentencing exercise.

42. First, her Honour noted the “almost insurmountable” task of sentencing an offender for so many serious offences charged under different legislation, with different maximum penalties and some overlapping criminality.

43. Secondly, her Honour noted the large number of uncharged offences referred to in the Agreed Facts particularly in relation to Child 1 and to a lesser extent Child 2 and Child 3. She noted (uncontroversially) the bases upon which such evidence is usually relevant but observed that the “number and gravity” of the offences before her were such that the uncharged acts assumed “little to no relevance”.

44. Thirdly, her Honour noted the large number of matters to be taken into account on Forms 1. She did not outline the facts in relation to those 38 schedules but would have regard to their “nature and gravity.” Her Honour was satisfied that it was “appropriate and proper” to take those offences into account in relation to the nominated principal offences but observed that it would have been preferable had they been placed on fewer schedules in relation to Child 1. Her Honour then correctly stated the applicable law as to how to treat those matters by reference to cases such as Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 and Abbas (and Ors) v R [2013] NSWCCA 115.

45. Fourthly, her Honour noted that she had had regard to, inter alia, the Judicial Commission sentencing statistics, and the “Comparative Cases filed on behalf of the Offender” which was compiled using the sentencing tables available on the Public Defenders’ website. After noting the use of such material, her Honour observed:

“Justice is nothing if it is not individualised and the penalties imposed upon other offenders for approximately like offending say very little about the appropriate sentence for this offender and his offending. What I must do is determine the appropriate sentence in the circumstances at hand having regard to the legislative guideposts of the maximum penalty and any applicable standard non-parole period, my assessment of the objective gravity of each offence, the offender’s subjective features and the sentencing principles concerning the commission of sexual offences upon children and offences involving CAM which have been expressed by the courts on many occasions and to which I will come.”

46. Her Honour then indicated that due to the large number of offences she proposed to make her findings of objective seriousness after recounting the facts of each offence or groups of offences. Her Honour then went on to express how she proposed to address the objective seriousness of each of the offences:

“I appreciate the task of assessing the objective seriousness of individual offences (whether attracting a standard non-parole period or not) is not a mathematical or formulaic process. Rather, it involves the consideration of all relevant features revealed by the evidence and the making of a judgment as to objective gravity within a range of seriousness for such an offence. While the language used to describe findings regarding the objective gravity of an offence attracting a standard non-parole period can differ to that used for an offence that does not attract a standard non-parole period, for uniformity I intend to adopt the same language.

The ranges I have used in assessing the objective seriousness of each offence is that for an offence of its type, the offence at hand falls:

● ‘(to varying extents) below mid-range’;

● ‘(to varying extents) within mid-range’; and

● ‘(to varying extents) above mid-range’.

I have used the word ‘range’ deliberately because even within this method of classifying objective gravity, there is a continuum. Accordingly, offences within the same notional range of objective gravity may in fact receive a different indicative sentence because they fall at a different spot within that said range. The extent to which this is so will be apparent by the different indicative sentences announced.”

47. Her Honour then went on in some detail to consider the relevant factors she had regard to when assessing the objective seriousness of each of the 114 offences. She noted that age is an element of each offence and not to be double counted but observed (correctly) that the actual age of a victim relative to the applicant’s age and the victim’s respective vulnerability remained a relevant consideration. She also observed that the further removed a child was from the upper age limit for each offence, the more serious it was.

48. In addition to age, her Honour noted the significance of the relationship between the applicant and each victim. It varied as between the children, but the common feature was that each parent trusted the applicant to care for their son when in his company and the applicant exploited that trust. To varying extents the children were each under the applicant’s care, supervision and/or authority. The offences committed against Child 1 were committed in his own home by the applicant who was his stepfather. Those committed upon Children 2 to 6 occurred in a context whereby those children were in the applicant’s home having been invited over. The offending in relation to Child 7 occurred in a context in which the applicant was minding him. Her Honour noted that she would not “double count” these features.

49. Her Honour went on to note that all of the offending had to be considered in the context that the applicant knew of his sexual attraction to boys before Child 1 became part of his life, when Children 2 to 6 were invited to spend time at his home and when he was minding Child 7. Although there was no planning per se, there was no need for any because the applicant created an environment where he could offend, conceal and re-offend as and when he desired for his own sexual gratification. In the circumstances, his lack of planning afforded him little mitigation.

50. There was no violence or threats of violence, but none was needed. Some offences occurred when a child was sleeping or preoccupied playing Fortnite (an online game). Further, over time, Child 1 became so accustomed to what the applicant was doing that force, violence or threats was not in fact needed. Her Honour then quoted McCallum J (as her Honour then was) in R v BA [2014] NSWCCA 148 at para [33] to the effect that lack of violence is not a mitigating factor:

“An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child’s trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust.”

51. Her Honour then noted that the majority of the “contact” offences (sexual assaults) were captured within video recordings so the approximate duration of each offence could be ascertained, although typically several contact offences were committed in the one episode in which CAM was produced. Her Honour then noted that she proposed to include details of the CAM when describing the assaults but noted that they are separate offences to be considered separately. Although the contact offences were typically of a short duration, affording undue weight to that factor risks minimising or ignoring the “serious consequences sexual offending upon children invariably causes even if such offending be brief”.

52. Her Honour then turned to consider the type of sexual intercourse for the offences involving that element. Her Honour accepted that there is no fixed hierarchy of seriousness in the different forms of sexual intercourse, but observed that the actual nature of the intercourse and the circumstances in which it took place is a very relevant consideration citing R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [97].

53. It was noted the acts of sexual intercourse committed upon Child 1 involved digital penetration, fellatio, and anal intercourse, at times involving a degree of force and causing Child 1 pain. The one act of sexual intercourse committed upon Child 2 was an act of digital intercourse. Her Honour was satisfied that on the facts in this case the anal intercourse was more objectively serious than the other types of intercourse and the act of the applicant placing his adult penis into Child 1’s mouth was “slightly” more serious than Child 1’s penis being placed inside the applicant’s mouth.

54. As for the offences of sexual touching, her Honour had regard to the nature of the conduct, the circumstances in which it occurred, the degree of physical contact involved and skin to skin contact particularly with a more intimate part of the body was objectively more serious than contact through clothing and/or to a less intimate part of the body.

55. Her Honour then noted that in assessing the objective seriousness in relation to the offences involving CAM the relevant factors including possession, dissemination and transmission of such material are set out in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 and R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294. Her Honour then applied these principles and made the following observations as to the applicant’s conduct in relation to the CAM overall:

1. All of the material involved actual children and much of it involved young children;

2. Some of the material received by the applicant depicted conduct that occasioned extreme physical cruelty, harm and degradation upon babies and toddlers;

3. While the Agreed Facts reveal that the applicant recorded and thus produced CAM of all of his contact offences, the CAM he produced that is relied upon to prove each s 91G(1) offence was typically very small in quantity and considerably less serious in terms of what it depicted. While the Crown could have charged a rolled-up offence and thereby included more serious material, that course was not preferred;

1. There is nothing to suggest that the applicant had proximity to those responsible for bringing the material he received from others into existence;

2. The applicant participated in the making, disseminating or trading of CAM on a very regular basis over the period of his offending including up to the day of his arrest. Indeed, on the day of his arrest, he produced material in relation to Child 1 that was filmed live to Snapchat (Sequence 301);

3. The applicant was in possession of a large amount of CAM in the form of still images and videos. While the precise number of children depicted in the material is unknown, it clearly depicts many children. The applicant’s purpose for possession was for his own sexual gratification as well as to connect with like-minded others in order to exchange material. While some of the material he possessed was produced by others, his involvement and dealings with such material helped create a market for the continued exploitation and abuse of children;

4. The applicant was not involved in the sale of any material, nor did he receive any financial benefit. He did however receive other benefits from the transmission of material including the receipt of material that either aligned with his personal sexual preferences or with material with which he could trade with others for material that was to his interest;

5. The applicant’s online transmission of CAM was to a number of persons that cannot be definitively quantified;

6. Some limited planning and sophistication was involved, including the use of different usernames, PIN-protected folders and encrypted messaging services; and

7. There was no risk of the material being seen by vulnerable people. It was however intended to be seen and/or acquired by like-minded persons susceptible to act in the manner described or depicted given the applicant’s active participation in a collaborative network of like-minded persons.

56. Her Honour then moved to consider the Agreed Facts which are set out in the documents headed “Agreed Statement of Facts”, “Supplementary Agreed Facts” and “Annexures A, C, E, G, H, I and J”. Her Honour noted that the documents were lengthy and that she had “considered their full import”.

Agreed Facts

57. In May 2020, the Australian Federal Police investigated a series of videos posted to Snapchat which depicted the same male child being sexually abused by an adult man and which appeared to be self-produced.

58. The videos have been transmitted from a person using a Snapchat username “baddad03”. That username was associated with an email address “[email protected]” which was linked to an IP address registered to the applicant’s father, a family address and a connection mobile number used by the applicant.

59. On 8 May 2020, officers executed numerous search warrants. Seized from the applicant was a Samsung Galaxy S9 mobile phone (hereafter the “Galaxy S9”). Seized from a white Isuzu truck used by the applicant in relation to his job within the family business was a black Apple iPhone 7 (hereafter the “Apple iPhone”).

60. Located on the Apple iPhone were 177 CAM images and videos which the applicant had downloaded using the internet, the majority of which were Category 1. This material forms the basis of the Sequence 1 offence (possess child abuse material obtained using a carriage service contrary to s 474.22A(1) of the Criminal Code) which was to be taken into account when sentencing him for the Sequence 2 offence, which was brought under the same section.

61. Located on the Galaxy S9 was a PIN-protected folder named “Secure Folder” which contained CAM images and videos. Part of this material had been made (that is, self-produced) by the applicant and was Category 1 material depicting the seven known child victims, the majority of which was geotagged as having been created at the applicant’s premises. The folder named “Secure Folder” also contained CAM of other non-identified but real children. A total of 3,348 images and videos were located on the Samsung S9 all of which formed the basis of the Sequence 2 offence.

62. With the exception of Child 6, the applicant transmitted CAM he had made of the child victims to other persons using Snapchat, [3] Telegram, [4] and Kik. [5] This often occurred in the course of chats and exchanges between the applicant and such others where the applicant “traded” CAM he had made in relation for such material in the possession of other persons.

    3. Snapchat is a multimedia messaging application that allows registered users to exchange pictures and videos, which can be shared directly through the application or by uploading media from the user’s camera gallery and sent directly to other users or through group chats. Such material can potentially be saved for later unlimited viewing.

    4. Telegram is a cloud-based instant messaging service which enables users to send text and voice messages and animated stickers, make voice and video calls and share an unlimited number of images, documents, user locations, contacts and music.

    5. Kik is an instant messaging mobile phone application which uses data or wi-fi to transmit and receive messages, photos, videos, sketches, mobile web pages and other content and preserves users’ anonymity by allowing users to register without providing a telephone number or valid email address.

63. The applicant used at least four different vanity names (meaning unique usernames assigned to social media accounts) to advertise his sexual interest in children, specifically male children, and the fact that he was in possession of CAM for the purpose of connecting with like-minded others so that he could obtain CAM from those persons. This conduct forms the basis of the Sequence 3 offence (solicit child abuse material using a carriage service and advertise for child abuse material obtained using carriage service contrary to s 474.22 of the Criminal Code).

64. None of the offences had been the subject of complaint and/or detection prior to the discovery of the CAM on Snapchat which led to the intervention of the authorities. It was as a result of what was revealed in the CAM and then what was revealed by the material seized during the search warrants that the contact offences involving Children 1, 2, 3, 5 and 7 and the applicant’s use of Child 4 and Child 6 to produce CAM came to light.

65. Investigations revealed that offences were committed on multiple dates between 2017 to 2020 (at which time the applicant was aged between approximately 27 to 30), almost always in the applicant’s home and on many occasions a number of offences were committed in the one episode.

66. Throughout the offending the applicant was in a de-facto relationship with Child 1’s mother. From around February 2017, they lived with Child 1 in St Marys before moving in April 2019 to St Clair.

CHILD 1

67. Child 1 was born in 2012 and suffers mild autism. The applicant was a father figure to Child 1 and played a role in his care within their shared home.

68. Although her Honour recounted the facts of each offence and made her findings of objective seriousness before she summarised the accounts given by Child 1 and Child 1’s mother, I propose to do so in the reverse order.

Police interview with Child 1

69. Child 1 was interviewed by police after the applicant was arrested. He was interviewed and was able to provide police with the following information.

70. The applicant showered with him, and he would wash the applicant’s private parts. Sometimes the applicant wore no clothes when they played the game Fortnite together. “White stuff” would come out of the applicant’s “willy” and “the way the white stuff came out was by ‘mouth, bottom or hand’”. They used to do it for “skins” in Fortnite “because he liked it”. He and the applicant had secrets: “we push his willy up and down” and he and the applicant had been doing it for two years.

71. Child 1 told police that the day before the applicant left (meaning, was arrested), the applicant asked him “[d]o you want a skin?” to which he replied that he did and that later “we done that and then he got me a skin”.

72. When Child 1 was asked what he had to do to get a skin, Child 1 said that in the afternoons when his mother was not home the applicant “put his willy in my bottom and then he pushed it into me and then out and then pushed it in” and that had happened the day before the applicant left (or was arrested).

73. After the applicant put his “willy” in Child 1’s bottom, Child 1 needed to go to the toilet to do a poo, and “white stuff came out my butt…because some of the white stuff was still in my bottom…because he didn’t wash it out”.

74. When the applicant put his “willy” into Child 1’s bottom, he said that he was “lying down playing Fortnite so it would calm me down ‘cos it hurts a little bit’.”

75. Before the applicant put his private part into his bottom, the applicant “puts like stuff to help it not hurt that much”. When the applicant puts his “thing” into his bottom, the applicant “starts shaking up and down and then when he says it’s about to come out, and then it comes out and then it feels good for me and him”; and the applicant would tell him, “[r]elax, just relax ‘cos it hurts a lot’.”

Child 1’s mother

76. Child 1’s mother was also interviewed by police. In July 2016, she began a relationship with the applicant and later became his fiancée.

77. In February 2017, she, Child 1 and the applicant began living together at St Marys and, as both she and the applicant worked full-time, Child 1 attended before and after school care. When the applicant finished work, he would collect Child 1 and bring him home whereupon they would be home together for a couple of hours before she arrived home.

78. The applicant took on the primary care of Child 1 including showering and toileting him, and the applicant invited other male children to the home for sleepovers almost every fortnight. The applicant took responsibility for bathing Child 1 and any child who stayed over.

79. She recalled that a few times Child 1 and visiting children would play games or run around naked. The applicant encouraged her and Child 1 to be naked in the home as he himself did and encouraged Child 1 to sleep naked as he himself did.

80. After the move to St Clair in April 2019, Child 1’s behaviour changed in that he became distant and preferred the applicant.

81. In 2018, Child 1’s behaviour began to get out of control, and he began acting violently to property and was diagnosed with Autism Spectrum Disorder 2. He was also heavily constipated and was prescribed medication and then developed liquid-type stools.

82. Child 1 had trouble sleeping and from 2018 the applicant purchased melatonin gummies online which he gave to Child 1 to help him sleep. The gummies put Child 1 to sleep very quickly and without them Child 1 would call out for the applicant to comfort him whereupon the applicant would lie in Child 1’s bed naked, sometimes for hours.

83. The applicant had a Samsung Galaxy mobile phone which she was never allowed to touch. She found Child 1 masturbating in his bed on more than one occasion and when this occurred the applicant said she should “leave him alone he is doing boy things”.

84. From time to time, she found white stains on Child 1’s sheets which she would have to wash out.

85. In late 2019, Child 1 walked in when she and the applicant were having sexual intercourse and Child 1 said “you’re doing that white stuff, you said that was our secret.” Soon after that, the applicant told her that Child 1 had seen him “at the old house I was finishing myself off and he walked in”. She told police that the applicant treated their sex life as a task and would make excuses not to have sex.

Findings of objective seriousness in relation to Child 1

Non-contact offences

Use a child under the age of 14 years for the production of CAM (contrary to s 91G of the Crimes Act, maximum penalty 10 years imprisonment)

86. Sequence 206 was committed on 27 October 2018 at St Marys when Child 1 was aged six. It consists of a 15 second video showing Child 1 lying on his side wearing no pants with the camera zoomed in on his buttocks and anus (this video was disseminated on Snapchat).

87. Sequence 183 was committed on 1 November 2018 at St Marys when Child 1 was aged six. It consists of a 11 second video showing Child 1’s buttocks and anus and the applicant using his thumb to rub Child 1’s anus (this video was disseminated on Kik).

88. Her Honour’s finding of objective seriousness for Sequences 206 and 183 was “to varying extents, below mid-range.”

Transmit CAM using a carriage service in circumstances of aggravation, namely, involving transmissions on three or more occasions and two or more people (contrary to s 474.24A(1)(a)(iii) of the Criminal Code, maximum penalty 25 years of imprisonment)

89. The applicant’s social media accounts reveal that on 38 separate days between 13 July 2018 and 27 April 2020, at which time Child 1 was aged seven and eight, he used the internet to make 229 transmissions of CAM of himself and Child 1. This conduct forms of the basis of the Sequence 10 offence.

90. Her Honour’s finding of objective seriousness for Sequence 10 was below mid-range.

Contact offences

Sexual intercourse with a child under the age of 10 years (contrary to s 66A(1) of the Crimes Act, maximum penalty life imprisonment)

Six offences involving digital sexual intercourse

91. Sequences 170 and 191 were committed on 17 May 2018 at St Marys at which time Child 1 was aged six. At the time of Sequence 170, Child 1 was lying over the applicant’s lap and was trying to crawl away from him. When the applicant stuck his finger in and out of Child 1’s anus multiple times, Child 1 clenched his buttocks and said something similar to “[h]ayy” and used his hands and tried unsuccessfully to pull the applicant’s hand away from his buttocks. (14 second video). At the time of Sequence 191, the applicant held his erect penis in front of Child 1 and inserted his finger into Child 1’s anus (two images).

92. Sequence 202 was committed on 20 August 2018 at St Marys at which time Child 1 was aged six. Child 1 was lying on a lounge wearing a shirt and no pants. His buttocks were exposed, and he was watching television. The applicant rubbed his finger between Child 1’s buttocks before sticking his finger into Child 1’s anus. Child 1 tensed his buttocks and tried unsuccessfully to wriggle free from the applicant’s grip. The applicant pushed his finger further into Child 1’s anus while Child 1 asked in a quavering voice, “[o]oouuuuu are you doing” (18 second video disseminated on Snapchat).

93. Sequence 244 was committed on 9 November 2019 at St Clair at which time Child 1 was aged seven. Child 1 was naked and was lying in a bed asleep, the applicant inserted his finger into Child 1’s anus as Child 1 clenched his buttocks (11 second video).

94. Sequence 294 was committed on 7 April 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying face down on a bed wearing no pants. The applicant separated Child 1’s buttocks and inserted his finger into Child 1’s anus (18 second video disseminated on Snapchat and Kik).

95. Sequence 171 was committed on 27 April 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying on a bed with his buttocks exposed. His anus was wet with liquid and the applicant rubbed his finger between Child 1’s buttocks and then inserted his finger into Child 1’s anus (28 second video disseminated on Snapchat).

96. Her Honour’s finding of objective seriousness for Sequences 170, 191, 202, 244, 294 and 171 was “to varying extents, within mid-range”.

15 offences involving fellatio (either the applicant placing his penis into Child 1’s mouth or where Child 1’s penis was placed into the applicant’s mouth)

97. Sequence 5 was committed on 7 June 2018 at St Marys at which time Child 1 was aged six. The applicant was sitting on the lounge not wearing any pants and had an erect penis. Child 1 was naked, and the applicant placed his penis inside Child 1’s mouth while Child 1’s hand was at the base of his (the applicant’s) penis. The head of the applicant’s penis has white liquid on it consistent with semen (one second video disseminated on Snapchat).

98. Sequence 194 was committed on 25 June 2018 at St Marys at which time Child 1 was aged six. The applicant placed his erect penis inside Child 1’s mouth (six images disseminated on Snapchat).

99. Sequence 198 was committed on 17 July 2018 at St Marys at which time Child 1 was aged six. The applicant sucked Child 1’s penis (10 second video).

100. Sequence 203 was committed on 20 August 2018 at St Marys at which time Child 1 was aged six. Child 1 was naked and was lying on his back. The applicant sucked Child 1’s penis (nine second video).

101. Sequence 333 was committed on 9 January 2019 at St Marys at which time Child 1 was aged seven. The applicant sucked Child 1’s penis while Child 1 was covering his anus with his hand (eight second video disseminated on Snapchat).

102. Sequence 208 was committed on 15 January 2019 at St Marys at which Child 1 was aged seven. The applicant was lying on a bed with his erect penis sticking out from his boxer shorts and with his hand at the base of his own penis. Child 1 moved his head towards the applicant’s penis and placed the applicant’s penis into his mouth and moved his head up and down the applicant’s penis (20 second video disseminated on Snapchat and Telegram).

103. Sequence 274 was committed on 31 January 2019 at St Marys at which time Child 1 was aged seven. Child 1 was sitting on the lounge and the applicant sucked Child 1’s penis (19 second video disseminated on Snapchat).

104. Sequence 211 was committed on 26 April 2019 at St Clair at which time Child 1 was aged seven. The applicant placed his penis inside Child 1’s mouth (five images).

105. Sequence 213 was committed on 1 July 2019 at St Clair at which time Child 1 was aged seven. Child 1’s penis was inside the applicant’s mouth (19 second video disseminated on Snapchat, Telegram and Kik).

106. Sequence 224 was committed on 22 August 2019 at St Clair at which time Child 1 was aged seven. Child 1’s penis was inside the applicant’s mouth (10 second video disseminated on Snapchat and Telegram).

107. Sequence 227 was committed on 4 September 2019 at St Clair at which time Child 1 was aged seven. Child 1’s penis was inside the applicant’s mouth (six second video disseminated on Snapchat).

108. Sequence 260 was committed on 19 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was sitting on a lounge and the applicant placed Child 1’s penis inside his mouth (20 second video disseminated on Telegram)

109. Sequence 278 was committed on 6 February 2020 at St Clair at which time Child 1 was aged eight. Child 1 was sitting on a lounge and the applicant placed Child 1’s penis inside his mouth (19 second video disseminated on Snapchat).

110. Sequence 286 was committed on 5 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying on a bed and the applicant placed Child 1’s penis inside his mouth (23 second video disseminated on Snapchat).

111. Sequence 296 was committed on 17 April 2020 at St Clair at which time Child 1 was aged eight. The applicant and Child 1 were naked together in the shower and the applicant placed his erect penis inside Child 1’s mouth (4 second video disseminated on Snapchat).

112. Her Honour’s finding of objective seriousness for Sequences 5, 194, 198, 203, 333, 208, 274, 211, 213, 224, 227, 260 278, 286 and 296 was “to varying extents, within mid-range”.

Four offences involving anal sexual intercourse

113. Sequence 254 was committed on 5 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was in a bedroom and the applicant inserted his penis into Child 1’s anus (24 second video disseminated on Snapchat, Telegram and Kik).

114. Sequence 257 was committed on 9 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was lying naked on a lounge with his legs open. The applicant inserted his penis into Child 1’s anus while simultaneously masturbating Child 1’s penis (13 second video disseminated on Snapchat and Telegram).

113. Sequence 290 was committed on 25 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was wearing no pants and was bending over the lounge. The applicant inserted his penis into Child 1’s anus until he ejaculated. After pulling his penis out of Child 1’s anus, semen dribbled from Child 1’s anus and Child 1 asked the applicant, “[a]re you done?” (19 second video disseminated on Snapchat and Kik).

114. Sequence 297 was committed on 22 April 2020 at St Clair at which time Child 1 was aged eight. Child 1 was wearing no pants and was on his knees leaning forward. The applicant rubbed his erect penis between Child 1’s buttocks and then inserted his penis into Child 1’s anus (six second video disseminated on Snapchat and Telegram).

115. Her Honour’s finding of objective seriousness for Sequences 254, 257, 290 and 297 was “all above mid-range”.

Sexually touching a child under the age of 10 years (contrary to s 66DA(a) of the Crimes Act, maximum penalty 16 years imprisonment)

118. Sequence 6 was committed on 6 December 2018 at St Marys at which time Child 1 was aged six. Child 1 was lying naked on a bed with his legs open while the applicant vigorously masturbated Child 1’s penis making the head of Child 1’s penis protrude from the foreskin (five second video).

119. Sequence 210 was committed on 18 March 2019 at St Marys at which time Child 1 was aged seven. Child 1 was lying on the lounge naked playing a game with a console while the applicant fondled his penis and scrotum with his fingers (nine second video disseminated on Kik).

120. Sequence 214 was committed on 5 July 2019 at St Clair at which time Child 1 was aged seven. The applicant masturbated Child 1’s penis (three second video disseminated on Telegram).

121. Sequence 216 was committed on 12 July 2019 at St Clair at which time Child 1 was aged seven. Child 1 was asleep in a bed. His pyjamas pants were pulled down and the applicant masturbated onto Child 1’s buttocks (12 second video).

122. Her Honour’s finding of objective seriousness for Sequences 254, 257, 290 and 297 was “all above mid-range”.

123. Sequence 230 was committed on 15 September 2019 at St Clair at which time Child 1 was aged seven. Child 1 was sitting naked in the loungeroom, and the applicant fondled his penis (22 second video disseminated on Snapchat).

124. Sequence 235 was committed on 28 September 2019 at St Clair at which time Child 1 was aged seven. Child 1 was lying on a bed without any pants. The applicant pushed back Child 1’s legs towards his head exposing Child 1’s penis. The applicant held his own penis in his hands and masturbated while sticking it in and out of Child 1’s buttocks (21 second video disseminated on Snapchat, Telegram and Kik).

125. Sequence 236 was committed on 4 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was sitting on a lounge with another small child. The applicant was also sitting on the lounge near Child 1. The applicant was not wearing pants and had his penis exposed and he masturbated while using his foot to rub Child 1’s buttocks (11 second video disseminated on Snapchat).

126. Sequence 237 was committed on 5 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was lying on a lounge. The applicant rubbed Child 1’s groin over his clothes. Child 1 put his hand over his penis and the applicant pushed his hand away and continued to touch Child 1’s penis before taking Child 1’s penis out of his pants and masturbating Child 1 (35 second video).

127. Sequence 238 was committed on 13 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was in a bedroom and was masturbating the applicant’s erect penis (five second video disseminated on Snapchat and Telegram).

128. Sequence 241 was committed on 30 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was asleep on a bed with his buttocks exposed. The applicant masturbated and ejaculated over Child 1’s buttocks and then rubbed his finger in between Child 1’s buttocks (disseminated on Telegram).

129. Sequence 243 was committed on 8 November 2019 at St Clair at which time Child 1 was aged seven. The applicant licked Child 1’s buttocks and anus (four second video).

130. Sequence 245 was committed on 11 November 2019 at St Clair at which time Child 1 was aged seven. Child 1 was lying in a bed and the applicant masturbated Child 1’s penis (nine second video disseminated on Kik).

131. Sequence 247 was committed on 17 November 2019 at St Clair at which time Child 1 was aged seven. The applicant was lying in a bed with Child 1 who was asleep. The applicant used Child 1’s hand to masturbate his (that is, the applicant’s) penis. The applicant produced pre-ejaculate and used Child 1’s thumb to rub the pre-ejaculate from the head of his penis (22 second video disseminated on Snapchat).

132. Sequence 253 was committed on 3 December 2019 at St Clair at which time Child 1 was aged seven. The applicant pulled Child 1’s pants down and masturbated his penis (41 second video disseminated on Snapchat and Telegram).

133. Sequence 259 was committed on 18 December 2019 at St Clair at which time Child 1 was aged seven. The applicant pulled Child 1’s pants down and masturbated his penis (50 second video disseminated on Snapchat).

134. Sequence 267 was committed on 10 January 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying naked on a bed and the applicant masturbated his (that is, Child 1’s) penis while Child 1 masturbated the applicant’s penis (28 second video disseminated on Snapchat).

135. Sequence 269 was committed on 14 January 2020 at St Clair at which time Child 1 was aged eight. The applicant and Child 1 were in the shower. Child 1 masturbated the applicant’s erect penis causing the applicant to ejaculate onto Child 1’s hand and the shower floor (16 second video disseminated on Snapchat).

136. Sequence 270 was committed on 19 January 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep on a bed and the applicant used Child 1’s hand to masturbate his own erect penis (13 second video disseminated on Snapchat and Telegram).

137. Sequence 271 was committed on 23 January 2020 at St Clair at which time Child 1 was aged eight. Child 1 was standing in the loungeroom in front of the applicant. The applicant pulled Child 1’s pants down and fondled Child 1’s penis (10 second video disseminated on Snapchat).

138. Sequence 272 was committed on 24 January 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep in a bed and the applicant took his own erect penis and pushed it into Child 1’s face (12 second video disseminated on Snapchat).

139. Sequence 289 was committed on 24 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep, and the applicant used Child 1’s hand to masturbate his own erect penis (20 second video disseminated on Snapchat).

140. Sequence 295 was committed on 15 April 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying on a bed with no pants. The applicant masturbated Child 1’s penis. Child 1 said “[l]et me do it” and began masturbating his own penis. The applicant then touched Child 1’s testicles and continued to masturbate Child 1 (17 second video disseminated on Telegram).

141. Sequence 300 was committed on 5 May 2020 at St Clair at which time Child 1 was aged eight. Child 1 was lying in a bed wearing boxer shorts. The applicant pulled down the boxer shorts and touched Child 1’s penis. Child 1 said “[s]top” (eight second video disseminated on Snapchat and Telegram).

142. Her Honour’s finding of objective seriousness for Sequences 6, 210, 214, 216, 230, 235, 236, 237, 238, 241, 243, 245, 247, 253, 259, 267, 269, 270, 271, 272, 289, 295 and 300 was “to varying extents, within mid-range”.

Inciting a child under the age of 10 years to sexually touch the person (contrary to s 66DC(a) of the Crimes Act, maximum penalty 16 years imprisonment)

143. Sequence 209 was committed on 14 February 2019 at St Marys at which time Child 1 was aged seven. The applicant was sitting on the lounge with his erect penis exposed while Child 1 was kneeling between the applicant’s legs masturbating the applicant’s erect penis with one of his hands. The applicant told Child 1 to “keep going, keep going”, whereupon Child 1 used both hands to masturbate the applicant’s erect penis. The applicant ejaculated over his own shirt and Child 1 said “[o]ohh it’s coming out” (16 second video disseminated on Snapchat).

144. Her Honour’s finding of objective seriousness for Sequence 209 was “within mid-range”.

Indecent assault of a person under the age of 16 years (contrary to s 61M(2) of the Crimes Act, maximum penalty 10 years imprisonment)

145. Sequence 184 was committed on 4 December 2017 at St Marys at which time Child 1 was aged five. Child 1 was lying on a bed completely naked. The applicant was not wearing any pants and straddled Child 1 pinning him to the bed. The applicant masturbated onto Child 1’s buttocks and ejaculated causing semen to dribble between Child 1’s buttocks (14 second video).

146. Sequence 187 was committed on 19 April 2018 at St Marys at which time Child 1 was aged six. Child 1 was lying in the loungeroom with the applicant. Child 1 was not wearing any pants and the applicant was wearing underpants. The applicant masturbated Child 1’s penis while pressing his own groin up against Child 1 (14 second video).

147. Sequence 323 was committed on 21 April 2018 at St Marys at which time Child 1 was aged six. The applicant used Child 1’s hand to masturbate his (that is, the applicant’s) erect penis (10 second video disseminated to Snapchat).

148. Sequence 188 was committed on 30 April 2018 at St Marys at which time Child 1 was aged six. Child 1 was naked but for a pair of socks and was bending over the lounge with his buttocks in the air. The applicant pulled Child 1’s buttocks apart exposing his anus and put his fingers in between Child 1’s buttocks and then smacked Child 1’s buttocks (seven second video disseminated on Snapchat).

149. Sequence 199 was committed on 24 July 2018 at St Marys at which time Child 1 was aged six. Child 1 was not wearing any pants and was sitting on the applicant’s lap. The applicant was not wearing any pants and his erect penis was exposed. Child 1 used both hands to masturbate the applicant’s erect penis causing the applicant to ejaculate over his shirt. The applicant told Child 1 to “keep going mmmmmmm”. On three occasions Child 1 said “it’s going all over you” (11 second video).

150. Sequence 201 was committed on 17 August 2018 at St Marys at which time Child 1 was aged six. Child 1 was lying naked on his back on a lounge. The applicant positioned himself in between Child 1’s legs and masturbated and rubbed his erect penis onto Child 1’s thighs and scrotum (nine second video disseminated on Snapchat).

151. Sequence 205 was committed on 24 October 2018 at St Marys at which time Child 1 was aged six. Child 1 was not wearing any pants and was lying on his side on a lounge with his legs open. The applicant rubbed his finger between Child 1’s buttocks and masturbated Child 1 (14 second video disseminated on Snapchat).

152. Sequence 197 was committed on 13 November 2018 at St Marys at which time Child 1 was aged six. Child 1 was not wearing any pants and the applicant touched Child 1’s penis and put his own erect penis between Child 1’s buttocks and legs (four images disseminated on Snapchat and Telegram).

153. Her Honour’s finding of objective seriousness for Sequences 184, 187, 323, 188, 199, 201, 205 and 197 was “to varying extents, within mid-range”.

Carry out a sexual act with or towards a child under the age of 10 years (contrary to s 66DC(a) of the Crimes Act, maximum penalty 7 years imprisonment)

154. Sequence 225 was committed on 28 August 2019 at St Clair at which time Child 1 was aged seven. The applicant and Child 1 were in the shower together and the applicant masturbated his own penis (11 second video disseminated on Snapchat).

155. Sequence 226 was committed on 2 September 2019 at St Clair at which time Child 1 was aged seven. Child 1 was asleep in a bed. The applicant pulled the sheets off Child 1 exposing his buttocks and then rubbed his hands on Child 1’s torso (six second video disseminated on Snapchat).

156. Sequence 239 was committed on 14 October 2019 at St Clair at which time Child 1 was aged seven. Child 1 was not wearing a shirt. The applicant masturbated and ejaculated over Child 1’s torso (13 second video).

157. Sequence 252 was committed on 2 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was awake and was lying in bed. The applicant masturbated over Child 1 (11 second video disseminated on Snapchat and Telegram).

158. Sequence 264 was committed on 24 December 2019 at St Clair at which time Child 1 was aged seven. Child 1 was naked in the bathroom with the applicant. Child 1 pulled out the applicant’s shorts and underpants exposing the applicant’s penis (seven second video disseminated on Snapchat and Telegram).

159. Sequence 284 was committed on 29 February 2020 at St Clair at which time Child 1 was aged eight. Child 1 was sitting on a lounge and the applicant was lying on the lounge masturbating and ejaculating onto tissues on his stomach (10 second video disseminated on Snapchat).

160. Sequence 287 was committed on 6 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep in bed with the sheets pulled over him, but his buttocks exposed. The applicant masturbated and ejaculated onto the bed and Child 1’s buttocks (16 second video disseminated on Snapchat and Telegram and Kik).

161. Sequence 293 was committed on 31 March 2020 at St Clair at which time Child 1 was aged eight. Child 1 was asleep in bed. The applicant masturbated and ejaculated onto Child 1’s hands (33 second video disseminated on Snapchat).

162. Sequence 301 was committed on 8 May 2020 at St Clair at which time Child 1 was aged eight. The applicant pulled down Child 1’s pants exposing his buttocks and penis (four second video filmed live to Snapchat and disseminated on Snapchat).

163. Her Honour’s finding of objective seriousness for Sequences 225, 226, 239, 252, 264, 284, 287, 293 and 301 was, “to varying extents, within mid-range”.

CHILD 2

164. Child 2 was born in 2012 and was aged seven at the time of the offending. He is friends with Child 1 and the applicant was his soccer coach.

Non-contact offences

Use a child under the age of 14 years for the production of CAM (contrary to s 91G(1) of the Crimes Act, maximum penalty 14 years imprisonment)

165. Sequence 180 was committed between 21 September 2019 and 27 January 2020 at which time Child 2 was aged seven. Over eight days, the applicant produced CAM, namely 38 videos and 37 images depicting Child 2 on his own, with another child and/or with the applicant.

166. Her Honour’s finding of objective seriousness for Sequence 180 was below mid-range.

Transmit CAM using a carriage service in circumstances of aggravation, namely, involving transmissions on three or more occasions and two or more people (contrary to s 474.24A(1)(a)(iii) of the Criminal Code, maximum penalty 25 years imprisonment)

167. The applicant’s social media accounts reveal that on 4 October 2019, 22 December 2019 and 29 December 2019, at which time Child 2 was aged seven, the applicant used the internet to make 30 transmissions of CAM of himself and Child 2 as well as Child 2 and Child 1 together or with the applicant. This conduct forms the basis of the Sequence 309 offence.

168. Her Honour’s finding of objective seriousness for Sequence 309 was below mid-range.

Contact offences

Sexual intercourse with a child under the age of 10 years (contrary to s 66A(1) of the Crimes Act, maximum penalty life imprisonment)

169. Sequence 28 was committed on 29 December 2019 at St Clair at which time Child 2 was aged seven. Child 2 was at a sleepover at the applicant’s home. Child 2 was asleep. The applicant masturbated and put semen onto his finger and then rubbed Child 2’s anus and then put a finger inside Child 2’s anus causing Child 2’s body to move (24 second video disseminated on Snapchat and Telegram).

170. Her Honour’s finding of objective seriousness for Sequence 28 is within mid-range.

Sexually touching a child under the age of 10 years (contrary to s 66DA(a) of the Crimes Act, maximum penalty 16 years imprisonment)

171. Sequence 15 was committed on 4 October 2019 at St Clair at which time Child 2 was aged seven. Child 2 was lying on a bed and the applicant put his erect penis between Child 2’s buttocks (13 second video named “that’s his mate” was disseminated on Telegram).

172. Sequences 21, 22 and 23 were committed on 22 December 2019 at St Clair at which time Child 2 was aged seven. At the time of Sequence 21, Child 2 was lying naked on a bed apparently asleep. The applicant was naked and was masturbating and then lifted one of Child 2’s buttocks and placed his penis between Child 2’s buttocks (10 second video disseminated on Snapchat). At the time of Sequence 22, the applicant masturbated Child 2’s genitals (26 second video disseminated on Snapchat). At the time of Sequence 23, the applicant masturbated before running his fingers along Child 2’s buttocks and anus (10 second video disseminated on Snapchat).

173. Sequence 26 was committed on 29 December 2019 at St Clair at which time Child 2 was aged seven. Child 2 was asleep on a bed. The applicant stood over Child 2 and masturbated and then spread Child 2’s buttocks apart exposing his anus and rubbed his fingers across Child 2’s anus (19 second video disseminated on Telegram).

174. Sequences 305 and 306 were committed on 29 December 2019 at St Clair at which time Child 2 was aged seven. Child 2 was asleep on a bed. At the time of Sequence 305, the applicant took Child 2’s hand and used it to stroke his own penis (14 second video disseminated on Telegram). The applicant’s penis came into contact with Child 2’s back and the applicant’s semen is visible on Child 2’s back (Sequence 306) (23 second video disseminated on Telegram).

175. Sequence 33 was committed on 25 January 2020 at St Clair at which time Child 2 was aged seven. The applicant and Child 2 were sitting on a lounge and the applicant touched Child 2’s groin area (nine second video disseminated on Snapchat).

176. Her Honour’s finding of objective seriousness for Sequences 15, 21, 22, 23, 26, 305 and 306 was “within mid-range” and for Sequence 33 it was “below mid-range”.

Inciting a child under the age of 10 years to sexually touch the person (contrary to s 66DA(b) of the Crimes Act, maximum penalty 16 years imprisonment)

177. Sequence 303 was committed on 24 October 2019 at St Clair at which time Child 2 was aged seven. The applicant and Child 2 were laying on a bed when the applicant took Child 2’s hand and placed it around his (that is, the applicant’s) flaccid penis. The applicant used Child 2’s hand to masturbate his (that is, the applicant’s) penis (46 second video disseminated on Snapchat).

178. Sequence 332 was committed on 29 December 2019 at St Clair at which time Child 2 was aged seven. The applicant masturbated and then forced Child 2’s hand onto his (that is, the applicant’s) testicles as the applicant continued to masturbate (20 second video disseminated on Snapchat).

179. Her Honour’s finding of objective seriousness for Sequences 303 and 332 was within mid-range.

Carry out a sexual act with or towards a child under the age of 10 years (contrary to s 66DC(a) of the Crimes Act, maximum penalty 7 years)

180. Sequence 11 was committed on 21 September 2019 at St Clair at which time Child 2 was aged seven. The applicant masturbated in the presence of Child 2 who was sitting on the lounge (15 second video disseminated on Snapchat).

181. Sequence 304 was committed on 22 December 2019 at St Clair at which time Child 2 was aged seven. The applicant masturbated over the leg of Child 2.

182. Sequence 32 was committed on 25 January 2020 at St Clair at which time Child 2 was aged seven. The applicant exposed his own penis and masturbated while sitting on a lounge next to Child 2 (18 second video disseminated on Snapchat).

●    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.”

373. The relevant principles applicable to a ground of appeal contending that an aggregate sentence is manifestly excessive were also summarised by R A Hulme J in JM v R at [40] and include the following (citations removed):

1. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence;

2. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive;

3. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved; and

4. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.

374. Although it was ultimately submitted that 83 of the 105 State offences had an indicative sentence which was manifestly excessive, the focus of the submissions at the hearing was on the sexual intercourse offences and in particular the four s 66A offences which involved penile/anal intercourse. The indicative sentence for these four counts was 9 years 7 months imprisonment with a non-parole period of 6 years and 11 months. It was submitted that support for the contention that these indicative sentences were too high is demonstrated when it is considered that the “starting point” (prior to the 40% discount) was nearly 16 years imprisonment (with rounding) with a non-parole period of 11 years and 6 months.

375. I am not satisfied that indicative sentences of 9 years 7 months imprisonment with a non-parole period of 6 years and 11 months for penile/anal intercourse with the applicant’s stepson is manifestly excessive given that the maximum penalty of life imprisonment, the standard non parole period of 15 years imprisonment, the finding of objective seriousness of “above the mid-range” (of which no complaint is made) and the applicant’s subjective case which was, as was conceded during oral argument, not particularly strong. Further, the “starting point” non-parole period was well below the SNPP.

376. During the hearing of this application, it was submitted that the applicant did not need to prove that the indicative sentences were manifestly excessive “because that was not a test being applied to the indicatives” and that it only needed to be established that they were “too high”. [7] It was also submitted that the claim that some of the indicative sentences were excessive did not require identification of which ones these were. [8] It is to be accepted that the appeal is against the aggregate sentence and not the indicative sentences; the ultimate question is whether the aggregate sentence is manifestly excessive. But it seems to me that simply demonstrating that many of the indicative sentences were “too high” cannot be looked at in isolation before the application of the totality principle.

     7. Tcpt, 17 May 2024, p10.

     8. Ibid.p11.

377. By way of example, if an offender were sentenced for 20 offences to an aggregate term of 10 years imprisonment and each of the 20 indicative sentences ranged from 7 to 9 years imprisonment, the fact that some of them may have been “too high” says nothing about whether the aggregate sentence is manifestly excessive given the significant notional accumulation.

378. Given that many of the aggravating features were common to each count, my conclusion that the indicative sentences for the most serious offences are not manifestly inadequate flows on to my findings that the remaining indicative sentences are not manifestly excessive either. I do not propose to repeat the serious aspects of the applicant’s offending. I have already set it out in some detail. Having regard to the guideposts of the maximum penalties and SNPPs in the context of the facts and her Honour’s findings, I am not satisfied that any of those sentences are unreasonable and plainly unjust.

379. Even if I were satisfied that some of the indicative sentences were “too high” or even “manifestly excessive”, as JM v R and the numerous cases which have followed it establish, that does not mean necessarily that the aggregate sentence is manifestly excessive. That is due to the proper application of the totality principle, which applies to indicative sentences: JM v R at [41].

380. The sentencing judge was required to consider questions of notional accumulation and concurrence: Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70. In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan J confirmed (at [45]) that “[a] judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

381. This Court considered the totality principle in R v MAK; R v MSK in the context of offenders who had committed multiple sexual assaults in company on more than one victim. The court (Spigelman CJ, Whealy and Howie JJ) observed (at [15]) that when a court is sentencing an offender for multiple offences, including when there are different victims, it is necessary to ensure that the aggregation of all of the sentences is a “just and appropriate measure of the total criminality involved”. The court went on to observe that an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences needs to be maintained for at least two reasons. The first of these reasons is that the severity of a sentence is not simply the product of a linear relationship. The court then went on to observe the following at [17]-[18]:

“[17]   The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.

[18]   A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.”

382. These two passages highlight the tension in applying the totality principle when there has been such extensive offending over years with different victims as in the present case. The aggregate sentence had to reflect very significant criminality. In applying the totality principle, the sentencing judge was required to impose a sentence that did not suggest that the applicant was being offered some kind of a discount for multiple offending.

383. It is unsurprising that the submissions in support of Ground 3 focussed on the length of the indicative sentences rather than a complaint about any misapplication of the totality principle. The aggregate sentence of 27 years with a non-parole period of 19 years was imposed for 105 offences, 26 of which carried a maximum penalty of life imprisonment.

384. During the hearing of the appeal, it was observed that the total of the indicative sentences was 443 years and 11 months. I accept the applicant’s submission that this is a total of what is effectively the head sentences. But her Honour specified a non-parole period for each of the 105 indicative sentences (even though she was not required to). If all of the non-parole periods are added together the total amounts to 324 years and 10 months.

385. It is to be accepted that there are limitations inherent in adopting an arithmetic approach to ascertaining the degree of notional concurrence in an aggregate sentence for so many offences. Despite this, I do not consider the applicant’s submission that there is no utility in adding the indicative sentences together to highlight the very considerable degree of notional concurrence the applicant received in the aggregate sentence. I note that the same exercise was undertaken in GG v R [2023] NSWCCA 102 at [90] in assessing a complaint of manifest excess which included a complaint about the lack of notional concurrence in an aggregate sentence.

386. In considering whether the aggregate sentence of 27 years with a non-parole period of 19 years is manifestly excessive, I have had regard to the number and nature of the 105 offences. Of those offences, 26 involved sexual intercourse with a child under 10 years of age which carried a maximum penalty of life imprisonment. Those offences contrary to s 66A involved anal/penile intercourse, fellatio, and digital/anal penetration. The offences were committed over a three-year period on a child in his care.

387. The aggregate sentence also needed to comprehend 24 counts of sexual touching of Child 1 under 10 years, contrary to s 66DA(a) which carries a maximum of 16 years and a standard non-parole period of 8 years. Those offences involved masturbating and ejaculating on the child, and various other kinds of touching which were recorded, plus the additional offending for similar matters taken into account by way of the numerous Form 1s. The aggregate sentence also needed to take into account the aggravated indecent assault offences against Child 1, which also carried a maximum of 10 years and standard non parole period of 8 years and where additional offending was reflected in the Form 1 matters.

388. In addition to the multiple offending against Child 1, the aggregate sentence also needed to reflect the 10 offences of sexual touching contrary to s 66DA committed against Child 2 as well as the additional sexual offending against Child 3, Child 4, Child 5 and Child 6. As for Child 7, he was only two years old. The sexual act directed towards him contrary to s 66DC carried a maximum penalty of 7 years.

389. The applicant’s subjective case was limited to one of remorse and post offence conduct such as to warrant a discount of 40%. Otherwise, he had guarded prospects of rehabilitation and there was no basis to reduce his moral culpability. Deterrence needed to be given significant weight in the sentencing exercise.

390. The applicant’s offending was prolific, repetitive and involved an abuse of the trust placed in him by Child 1’s mother and the parents of six other children. There have been numerous statements by this Court of the need for significant custodial sentences for offences of this nature. In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, Beech Jones CJ at CL (with whom Garling and Yehia JJ agreed) allowed a Crown appeal against the manifest inadequacy of an aggregate sentence imposed for sexual offences on the applicant’s young stepson. His Honour reviewed a number of decisions considering sentences imposed for offences contrary to ss 66A, 66C and 61J of the Crimes Act and noted the following at [50]:

“At the risk of stating the obvious, the utility of considering these cases is not to contrast and compare the aggregate sentences imposed with the aggregate sentence imposed on the respondent in this case. Given that each aggregate sentence relates to range of different offences, such a comparison has little or no utility other than revealing the application of the totality principle in different cases (Sharma v R [2022] NSWCCA 190 at [4]−[6] and [8]). Instead, the relevant comparators are the indicative, or individual, sentences for particular offences. In this respect, these cases speak in unison about the very significant custodial sentences that are imposed or indicated for offences under ss 66A and 66C(2) (or s 61J(1)), especially those that involve penile penetration.

391. Although it was submitted on behalf of the applicant that this decision was of little assistance given it only concerned one s 66A offence, I am satisfied that the statement of principle is apposite.

392. In Dinsdale v The Queen Gleeson CJ and Hayne J described a finding of manifest excess (at [6]) as a “conclusion”. I have considered the applicant’s principal submission that an aggregate sentence of 27 years imprisonment (partially accumulated on an aggregate sentence for the Commonwealth sentences such that the effective aggregate head sentence is 30 years with a non-parole period of 22 years) following a discount of 40% suggests a starting point that is manifestly excessive. There is no doubt that this is a stern sentence, but I am not persuaded that it is unreasonable or plainly unjust given the significant criminality for which the applicant stood to be sentenced.

393. I would dismiss Grounds 2 and 3.

Re-sentence for Commonwealth offences

394. It is necessary to re-sentence the applicant for the nine Commonwealth offences given the conceded error in Ground 1.

395. In the event of re-sentence, the applicant relied on an affidavit of Sarah Hedberg affirmed 24 April 2024. It was read, subject to two objections conceded by the applicant. The affidavit detailed that whilst in custody Mr Harden has undertaken a number of courses including Health Survival Tips, Skills Check, a mandatory safety course, Entrepreneur and New Business Certificate III and Positive Lifestyles Programs for Individuals.

396. The applicant’s case notes demonstrate that he has also been attending church and before his recent transfer to Mid-North Coast Correctional Centre he had been employed in various positions with “positive reports” regarding his performance. Case notes throughout his time in custody record that he is well-behaved and polite. He has been subject to a number of lock-ins due to sickness and staff shortages. He has also been the target of a number of attacks by fellow inmates, the most recent of which resulted in his relocation from Junee Correctional Centre in late 2023.

397. It was submitted on behalf of the applicant that this Court would impose a lesser aggregate sentence in relation to the Commonwealth offences. Additionally, this Court would allow greater concurrence with the aggregate sentence for the State offences because to do otherwise would mean that reducing the Commonwealth aggregate sentence would make no difference. It was submitted there were three reasons why a lesser sentence is warranted.

398. First, there should be recognition of the lower maximum penalty for five of the nine offences. The other four offences all have a maximum of 15 years imprisonment. Secondly, the 40% discount that is appropriate should have a real noticeable effect on the sentence imposed otherwise it loses its utilitarian value. Thirdly, the contents of the recent affidavit were relied upon. It was submitted that the recent affidavit evidence bears out the sentencing judge’s reasonable assumptions about the treatment that the applicant might experience in custody given the nature of his offending.

399. Finally, it was submitted that the court would have regard to the material in Annexure B relevant to the 40% discount. Although the court was not invited to review the amount of the discount, it was submitted that the documentation speaks more favourably of the applicant than a mere arithmetical acceptance of the 40% discount.

400. The Crown disputed that the affidavit on resentence demonstrated that the applicant was in a markedly different position from that in which he was at the time of sentencing in 2022 on the bases that his prospects of rehabilitation have not improved, and the sentencing judge knew that he would be placed in SMAP as is common with offenders of this nature.

401. It was submitted that a reduction of the indicative sentences for the s 424.24A(1) offences does not necessarily result in an overall reduction of the aggregate sentence when applying the principle of totality: Haines v R [2021] NSWCCA 149. Detailed submissions were provided in support of the Crown’s submission that, despite the error in the maximum penalty, no lesser sentence is warranted.

Re-sentence

402. The applicant did not challenge the findings made by the sentencing judge and I propose to resentence the applicant on the basis of the unchallenged factual findings made by the sentencing judge: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [9]). The additional material showed that the applicant has been of good behaviour in custody and is not a management issue.

403. I have set out some of the facts above. When he was arrested, the applicant was in possession of thousands of items of child abuse material, was producing child abuse material, advertising such material across multiple platforms, and transmitting this material on a regular basis to trade it with others, who urged the applicant to offend against Child 1. In return, the applicant sought and received humiliating and degrading content. I accept the Crown submission that the applicant’s conduct supported and expanded the trade of child exploitation material including the exploitation of Child 1, 2, 3, 5, and 7.

404. Turning first to the five offences of transmitting CAM using a carriage service in circumstances of aggravation: Sequences 10, 309, 310, 317 and 321. They all carry maximum penalties of 25 years imprisonment. Her Honour assessed them all as being below mid-range.

405. Sequence 10 involved the transmission on 229 occasions over 38 days of child sexual abuse material containing images of Child 1. Sequence 181 (under the same offence provision) was taken into account in relation to Sequence 10. It took place just under a period of two years over 38 separate days and pertained to 229 transmissions of CAM in relation to Child 1.

406. Sequence 309 was the same offence in relation to Child 2. It occurred over a three-month period and involved 30 transmissions.

407. Sequence 310 was the same offence in relation to Child 5 and pertained to a two-month period with 15 transmissions.

408. In relation to Sequence 317 (Child 5), there were only two days separated by about six months and only 14 transmissions. There were no transmission offences in relation to Child 6.

409. In relation to sequence 321 (Child 7), there were three transmissions on one day.

410. The remaining four offences all carried maximum penalty of 15 years imprisonment: Sequences 314, 2, 3 and 9.

411. Sequence 314 (transmitting CAM using a carriage service) pertained to Child 5. It was only on one day and involved four images. It was assessed as below mid-range.

412. Sequence 2 (possessing CAM obtained using a carriage service) related to the CAM located on the Galaxy S9 in a PIN-protected folder named “Secure Folder” which contained CAM images and videos. Part of this material had been self-produced by the applicant and was Category 1 material depicting the seven known child victims, the majority of which was geotagged as having been created at the applicant’s premises. The folder named “Secure Folder” also contained CAM of other non-identified but real children. A total of 3,348 images and videos were located on the Samsung S9 all of which formed the basis of the Sequence 2 offence. Sequence 1 contained the CAM located on the Apple iPhone: 177 CAM images and videos which the applicant had downloaded using the internet, the majority of which were Category 1: s 474.22A(1) taken into account when sentencing him for the Sequence 2. Her Honour found Sequence 2 was within the mid-range.

402. Sequence 3 (advertising CAM using a carriage service) relates to the applicant’s conduct between 5 April 2019 and 5 May 2020 of advertising his possession of CAM using a carriage service. He posted over 100 advertisements as described above at [235]. Her Honour found the objective seriousness to be within mid-range. In advertising to others, the applicant demonstrated the degree to which he was prepared to share this material with others but only after receiving images from them.

403. Sequence 9 relates to the applicant’s conduct between 16 November 2017 and 8 May 2020 of sending CAM he had made of Child 1 and to a lesser extent Child 3 and receiving CAM of real but unidentified children in exchange. The largest portion of CAM the applicant received and accessed was contained in links – the offending sharing 180 links between himself and one person alone. The exchange with other users is very disturbing and is extracted above at [242]-[263]. Her Honour assessed this as within the mid-range.

404. Although I accept the Crown submission that the indicative sentences for these four offences would play a lesser role in the determination of the overall aggregate sentence, Sequence 9 in particular warranted a significant indicative sentence.

405. I have considered the principles in relation to sentencing for such offences as set out in R v Porte. I have also had regard to the decisions in Bisiker v R [2022] NSWCCA 110 and Lyons v R [2017] NSWCCA 204. Whilst acknowledging the limitation of statistics, the Crown relied on a review of the statistics for the s 474.24A(1) offence committed before 23 June 2020 which showed that for the four offenders, they all received terms of imprisonment, with the aggregate term being 2 years, 4 years, 5 years and 6 years.

406. The possession and distribution of images of sexual abuse, torture and humiliation of very young children, including toddlers and babies constitutes serious offending. I accept the Crown submission that the Agreed Facts reflect that the applicant was seeking out more extreme content from those with whom he traded.

407. Although there is some overlap between the Commonwealth offending, the offences are aimed at different aspects: possession, transmission and advertising of CAM over the internet and telecommunications.

408. I have also considered the degree of overlap in criminality between the State and Commonwealth offences. Of the 105 offences, 94 were child sexual assault offences. Only 11 of those 105 offences related to CAM. They were the 11 offences of using a child under the age of 14 years for the production of CAM contrary to s 91G(1) with the maximum penalty of 14 years imprisonment and a SNPP of 6 years imprisonment.

409. I note in passing that, although I have previously queried the practice of imposing an aggregate sentence under s 53A of the Sentencing Act for Commonwealth offences (Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314 and Tenenboim v R [2024] NSWCCA 1), the decision in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556 is still routinely followed and I propose to do so in this matter.

410. Despite the fact that her Honour proceeded on the basis that the maximum penalty for the five aggravated offences was 30 years, she imposed very low indicative sentences for those offences even having regard to her finding of below mid-range of objective seriousness. The indicative sentences I would arrive at, applying the lower maximum penalty, are slightly higher than those indicated by her Honour. The indicative sentences I have arrived at for Sequences 2 and 9 are also slightly higher and the remaining indicative sentences are the same. Applying the totality principle, I have arrived at an aggregate sentence which is slightly higher than that imposed by her Honour.

411. As I observed in RO v R [2019] NSWCCA 183 at [119], the usual practice of this Court is that, after hearing oral submissions, the decision is reserved and judgment delivered at a later date. This practice renders it impractical to reconvene the court to give a “Parker” warning in the event that a conclusion is made that a higher sentence is warranted in law: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. Nor do I consider it appropriate to state what that higher aggregate sentence was for the reasons explained in RO v R at [123].

412. Despite the fact that I would not arrive at a lesser aggregate sentence for the Commonwealth matters than imposed by her Honour, in re-sentencing the applicant I am required to consider the totality principle given the aggregate sentence for the State offences. Having regard to the overlap in criminality, I would commence the aggregate sentence for the State offences six months earlier than her Honour did to allow some further concurrence.

ORDERS

424. Accordingly, I would propose the following orders:

1. Grant leave to appeal against sentence.

2. Allow the appeal in part.

3. The aggregate sentence imposed for the nine Commonwealth offences (with two additional offences on a s 16BA schedule) is confirmed (commencing on 8 May 2020 and expiring on 7 November 2025).

4. The aggregate sentence imposed for the 105 State offences (with the 63 additional offences on a Form 1) of imprisonment of 27 years is varied to commence on 8 November 2022 and expire on 7 November 2049 with a non-parole period of 19 years to commence on 8 November 2022 and expire on 7 November 2041.

5. The total effective sentence of imprisonment is 29 years and 6 months commencing on 8 May 2020 and expiring on 7 November 2049 with a non-parole period of 21 years and 6 months commencing on 8 May 2020 and expiring on 7 November 2041.

6. The earliest date the offender will be eligible for release to parole is 7 November 2041.

Endnotes

Decision last updated: 18 October 2024