Jones (a pseudonym) v The King

[2025] NSWCCA 29

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Jones (a pseudonym) v R [2025] NSWCCA 29

Hearing dates:

12 February 2025

Date of orders:

7 March 2025

Decision date:

07 March 2025

Before:

Basten AJA at [1];
McNaughton J at [35];
Weinstein J at [36]

Decision:

(1)   Grant the applicant leave to appeal from the sentence imposed in the District Court on 15 December 2023.

(2)   Allow the appeal and quash the sentence.

(3)   Resentence the applicant to an aggregate sentence of imprisonment for a non-parole period of 13 years, commencing on 29 June 2023 and expiring on 28 June 2036, with a balance of term of seven years, terminating on 28 June 2043.

Catchwords:

CRIME – appeal against sentence – child sex offences – finding of special circumstances – grounds were age of offender, first period of imprisonment, mental condition and rehabilitation – adjustment to non-parole period from the statutory ratio refused because no need for extended period of rehabilitation – other grounds remained – error in not adjusting non-parole period – offender resentenced

Legislation Cited:

Crimes Act 1900 (NSW), ss 66C, 66DB, 66DD

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases Cited:

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

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

Category:

Principal judgment

Parties:

Jones (a pseudonym) (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
A Chhabra & R Thampapillai (Applicant)
F Sullivan (Respondent)

Solicitors:
Hyde Park Lawyers (Applicant)
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00256607; 2021/00203711

Publication restriction:

Section 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibit the publication of any matter which is likely to lead to the identification of each of the victims.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 December 2023

Before:

McGrath SC DCJ

File Number(s):

2020/00256607; 2021/00203711

JUDGMENT

1. BASTEN AJA: The applicant faced a trial in the District Court in 2023 on eight charges of child sexual offences involving two victims aged between 11 and 12 years. One was the offender’s foster daughter. (There being a statutory non-publication order relating to the names and identity of the victims, the name of the applicant has been anonymised.) The applicant was convicted and sentenced by the trial judge, McGrath SC DCJ, who imposed an aggregate sentence of imprisonment for 20 years with a non-parole period of 15 years. The sentence commenced on 29 June 2023; the non-parole period therefore expires on 28 June 2038.

2. The sole proposed ground of appeal is that the sentencing judge made a finding of special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), but did not adjust the length of the non-parole period from the statutory ratio. For reasons explained below, the applicant’s submission that the judge erred in failing to vary the length of the non-parole period should be accepted.

3. In the event that the Court so found, the Director of Public Prosecutions submitted that this Court was bound to undertake a full resentencing exercise in accordance with the principles stated in Kentwell v The Queen. ^[1] That submission should also be accepted. An appropriate reduction is a period of two years, leaving a non-parole period of 13 years and a balance of term of seven years.

   1. (2014) 252 CLR 601; [2014] HCA 37.

The finding of special circumstances

4. For the purposes of resentencing, it will be necessary to outline the nature of the offending. For present purposes it is sufficient to say that there were two girls who were the victims of the offending, one of whom, “Belinda”, was the foster daughter of the applicant and his wife. Further, Belinda was his wife’s niece. She had been placed in the care of the offender and his wife when she was 18 months of age and remained in their care until she was 13 years 9 months. She was 12 years at the time of one incident of sexual offending (counts 7 and 9). The other girl, “Angela”, was the victim of six offences (counts 1-6), which occurred in the course of 2019 when she was aged 11 and 12 years. Of the eight offences, five involved digital-vaginal penetration and one involved penile-vaginal penetration. There was no doubt that the offending was serious.

5. The sentencing judge dealt with the issue of special circumstances in two passages in his judgment. First, he identified four reasons for making a finding of special circumstances, namely (i) age of offender (62 years); (ii) his first sentence to be served in custody; (iii) a mental health condition making time in custody significantly more onerous, and (iv) the need for a lengthy period of supervised release to address a “paedophilic disorder”. The judge then noted that he was required to consider, “in circumstances of the likely length of sentence that will be required to be imposed, whether the parole period reflected by application of the statutory ratio under the Sentencing Procedure Act will be sufficient such that special circumstances can be accommodated by such a parole period in any event.” ^[2]

   2. Sentencing judgment, p 24.

6. The second passage occurred at the conclusion of the reasons. After indicating the individual sentences which would have been imposed for the separate offences, and fixing an aggregate sentence of 20 years with a non-parole period of 15 years, the judge observed: ^[3]

“I note the five-year parole period and am of the view that, despite the finding of special circumstances, the period of five years will be more than adequate for the rehabilitative purposes necessary.”

3. Sentencing judgment, p 26.

7. The applicant’s case was that the judge’s reasons for not varying the statutory default ratio applied only to reason (iv) identified above: they did not address the other three bases upon which the finding of special circumstances was made.

8. The Director’s response involved two propositions. The first was that a finding of special circumstances involves two steps. The first is to identify matters capable of constituting special circumstances; the second is a discretionary judgment as to whether those matters justify a variation from the statutory default ratio (which, as a practical matter, involves a reduction of the non-parole period). The Director contended that the judge had taken only the first step. The second proposition was that the reduction was discretionary and should not be made unless the reduced period of mandatory custody adequately reflects the level of criminality inherent in the offending.

9. As to the first matter, while it is true that the first statement by the sentencing judge could be read as merely identifying matters capable of constituting a basis for finding special circumstances, that does not reflect the judge’s reasoning taken as a whole. As is clear from the last sentence in the judgment, set out above, he acknowledged that he had made a “finding of special circumstances”. Indeed, given that all four reasons were valid reasons for making such a finding, a refusal to do so in the circumstances would have required explanation. It should therefore be accepted that the judge did make a finding of special circumstances, which was entirely appropriate in the circumstances of the case.

10. As to the second matter, there is no doubt that a sentencing judge is entitled to refuse to reduce a non-parole period if satisfied that to do so would result in a sentence which did not adequately reflect the seriousness of the offending. However, that was not the approach adopted by the sentencing judge: rather, he provided a different reason, namely that a five-year period on parole would be “more than adequate” for the rehabilitative purpose he had earlier identified. Two observations may be made about that limited finding. First, it was in its terms unassailable. The benefits for a man, who would by then be in his 80s, of extending a period of rehabilitation beyond five years might be thought fanciful.

11. The second observation is that the judge did not express the view that any period of mandatory custody less than 15 years would be inadequate to reflect the criminality of the offending. Nor should such a state of satisfaction be implied, against the interests of the offender, given the considerable punitive effect of a 15-year period of imprisonment, and in the absence of a clear justification.

12. In my view, the judge’s otherwise clear and unassailable reasoning fell into error in not giving effect to the finding of special circumstances. The sole purpose of making a finding of “special circumstances” is to allow a variation of the statutory ratio, for the purposes of s 44(2) of the Sentencing Procedure Act (and s 44(2B) in respect of an aggregate sentence, to which the same principle applies). As counsel for the applicant submitted, the judge’s reason for not varying the non-parole period addressed only the fourth of four reasons for the finding of special circumstances. The applicant’s age, the significant adverse effects on him of his mental health condition, whilst in custody, and the fact that it is his first sentence of imprisonment, were each powerful considerations in favour of a variation of the non-parole period.

13. This Court should, nevertheless, exercise caution in interfering with the judge’s decision. As explained by Spigelman CJ in R v Simpson:^[4]

“There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.”

4. (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73] (Mason P, Grove and Sully JJ and Newman AJ agreeing).

14. That view was expressed on the basis that the function of the sentencing judge involved an assessment of facts and an exercise of judgment. So much must be accepted as warranting restraint in intervention. However, the same degree of restraint is not engaged where there is a material error of principle in the approach taken by a sentencing judge. This is a case in which the Court should intervene.

Resentencing – relevant circumstances

15. This is not a case in which there has been a mathematical error or some similar slip which can be corrected without re-exercising the sentencing discretion. However, the Court is entitled to accept findings made by the sentencing judge and, in the absence of submissions seeking different findings, should be cautious in not adopting those findings. Especially is that so in circumstances where the sentencing judge has conducted a trial in respect of each offence and is therefore very familiar with the circumstances of the offending. This Court has neither heard the witnesses, nor had access to the transcript of the trial.

16. As to intermediate findings, those observations are relevant in relation to findings as to the objective seriousness of the offending and the resultant individual sentences indicated by the sentencing judge. Nevertheless the circumstances of the offending must be addressed.

17. The most serious offence was undoubtedly the penile-vaginal intercourse with Belinda, an offence under s 66C(2) of the Crimes Act 1900 (NSW). On an afternoon after school, when the applicant was alone in the house with Belinda, he entered her room, closed the door, and told her to take off her clothes. When she refused, the applicant forced her down onto the bed and took off her skirt and underpants. He covered her mouth to stop her screaming and digitally penetrated her vagina (count 7), before penile penetration, which also occurred, but for “not long” ^[5] (count 9). For these two offences, which occurred in the first half of 2020, the judge indicated individual sentences of 9 years with a 6-year 6-month non-parole period (count 7) and 10 years with a 7-year non-parole period (count 9). ^[6]

    5. Sentencing judgment, p 11.

    6. Count 8 was an alternative to count 7.

18. Counts 1 and 2 involved separate incidents when Angela was present in the applicant’s home where her mother was employed as a cleaner. On the first occasion, Angela was in Belinda’s bedroom, lying on the bed and playing with one of the applicant’s dogs. The applicant came into the room got onto the bed, hugged her, put his hand inside her underpants and digitally penetrated her vagina. The offending lasted for about five minutes. When Angela tried to push the applicant off her, he held her down; the offending stopped when another dog entered the room and barked.

19. The second occasion, a week after the first, occurred when Angela was sitting on a bed with two of the applicant’s dogs. He entered the room and, as she stated in evidence, said that “he wanted me, like, to date me and he wanted, like, to try and get me pregnant and everything”. ^[7] The applicant put his hand down the front of his own pants while standing and facing Angela. She looked away and then got up and left the room. Carrying out a sexual act “with or towards a child” is an offence under s 66DD(a) of the Crimes Act and carries a maximum penalty of 12 years imprisonment. The sentencing judge indicated a sentence of 12 months for that offence. Viewed in isolation, it might not have warranted a prison sentence, but the earlier event of digital penetration provided a more serious context.

    7. Sentencing judgment, p 8.

20. Count 3 involved an incident on the morning following Angela having a sleepover with Belinda. Angela went into the applicant’s bedroom to say good morning to one of the dogs, wearing a nightie and a pair of shorts. She lay on the bed next to the dog and the offender who was still in bed, put his hand underneath her shorts and digitally penetrated her vagina. He stopped when another member of the household walked past the bedroom door. She then left the room to get ready for school.

21. Three further offences occurred on one occasion while Angela was at the applicant’s home with her mother. They occurred after the end of the school year in 2019, at some time in December, when Angela was 12 years old. She went to a shed in the back yard and was sitting on the couch with one of the applicant’s dogs when the applicant entered and sat on a coffee table facing her. He then pulled her shorts and underwear aside and digitally penetrated her (count 4).

22. The applicant stopped when Angela’s mother came out of the house, but when the mother returned to the house, he again approached Angela who was standing near a television. He forced her hand inside his pants and kept forcing her hand down when she tried to withdraw. She could feel his skin. The conduct constituted intentional sexual touching under s 66DB of the Crimes Act, carrying a maximum penalty of 10 years imprisonment. The judge indicated an individual sentence of 4 years with a non-parole period of 3 years (count 5).

23. After Angela had pushed away from the applicant, he approached again and lifted her shirt and bra and touched her breasts. She tried to force herself back from him, but he restrained her. She eventually pushed away from the applicant and ran inside the house. This further incident of sexual touching was the subject of an individual sentence indicated as 4 years 6 months, with a non-parole period of 3 years and 3 months (count 6).

24. The three offences of digital penetration were each found to warrant sentences of 7 years imprisonment with a non-parole period of 4 years 6 months. In my view, a lesser sentence would have been warranted in relation to count 3, which was, as the sentencing judge said, “opportunistic”, did not involve any degree of force or violence, and did not continue for long. However, as it can have no impact on the outcome of the resentencing exercise, and was not challenged, there is no need to interfere with this indication.

25. The importance of recounting the offending lies in the need for this Court to be satisfied that any reduction in the non-parole period does not result in a failure to impose a penalty which reflects the level of criminality.

26. It is necessary to refer to one other aspect of the offender’s conduct and one element of his personal circumstances to provide some degree of context for the offending the subject of the charges described above.

27. The applicant was also sentenced by the trial judge for an offence of indecent assault which had occurred in March 1990 when the applicant was 29 years of age. The victim was the younger sister of the applicant’s then wife. She was staying at the applicant’s home in difficult circumstances: her three-year-old nephew was dying of cancer. The victim, “Karen”, was then 16 years old and was at the home to provide care for the applicant’s children who were then aged three years and six months respectively. The victim’s sister was at the hospital visiting her nephew, possibly on the day before he died. Having put the children to bed, Karen went into the main bedroom and fell asleep. She was woken by the offender “cuddling and kissing her in a passionate way”, ^[8] placing his hand under her shirt and attempting to remove her bra. She managed to stop him and he left and went into another room. The offence involved what was characterised as an act of indecency, and at the time of the offending, carried a maximum penalty of 4 years imprisonment. The judge declined to impose a sentence of imprisonment in respect of that offence. Although Karen was some years older than the other victims at the times they were assaulted, being aged 16 years at the time of the offending, that offence revealed that the offending with Angela and Belinda was not the first occasion on which the applicant had been involved in sexual offending with girls or a young woman.

    8. Statement of Agreed Facts, par 8.

28. As to his personal circumstances, the applicant’s history included a period of three years in the navy, which he joined when aged 16 and from which he was medically discharged three years later. The judge accepted that he had been the victim of assaults, bullying and sexual assaults whilst a teenager, and that “his discharge from the navy was a result of the repeated assaults and sexual assaults upon him”, for which the navy later accepted responsibility. ^[9] His experiences in the navy resulted in a diagnosis of post-traumatic stress disorder and a persistent depressive disorder.

    9. Sentencing judgment, p 20.

29. The sentencing judge did not accept a causal connection between his mental disorders and the offending, but there is a distressing familiarity in what appears to be a cycle of violence and sexual abuse, where the victim becomes an offender.

30. Although not accepting a causal relationship in relation to the offending, the judge accepted that the PTSD “will adversely impact and make more onerous his time in custody”. He accepted a psychiatric opinion of Dr Christopher Bench that: ^[10]

“There is a foreseeable risk of a lengthy custodial sentence exacerbating his post-traumatic stress disorder and depression. Given he was sexually assaulted, it is likely that the highly aggressive setting of custody would thus have innumerable triggers that would be prone to exacerbate his condition.”

10. Psychiatric report, 28 November 2023, pp 8-9; sentencing judgment, p 22.

Resentencing – determination

31. There was, as has been noted, no challenge to the aggregate sentence of 20 years imprisonment. That sentence should be confirmed.

32. A finding of special circumstances is warranted, given that (i) the applicant was 62 years of age when his custodial sentence commenced (and is now 64 years of age), (ii) it is his first period of imprisonment, and (iii) his mental condition involves a more onerous custodial experience than would otherwise be the case. These factors in combination, if not individually, warrant such a finding. There should be a reduction of the non-parole period.

31. An appropriate reduction is two years, which would provide a non-parole period of 65% (rather than 75%) of the overall sentence. The applicant will then be eligible for parole in 2036, when he will be 75 years of age. His sentence will terminate in 2043, when he will be 82 years. The reduction does not create a sentence which is inadequate to reflect the overall criminality of the offending.

32. Accordingly, I propose the following orders:

1. Grant the applicant leave to appeal from the sentence imposed in the District Court on 15 December 2023.

2. Allow the appeal and quash the sentence.

3. Resentence the applicant to an aggregate sentence of imprisonment for a non-parole period of 13 years, commencing on 29 June 2023 and expiring on 28 June 2036, with a balance of term of seven years, terminating on 28 June 2043.

35. MCNAUGHTON J: I agree with Basten AJA.

36. WEINSTEIN J: I agree with Basten AJA.

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Endnotes

Amendments

07 March 2025 - Applicant's counsel updated

Decision last updated: 07 March 2025