Kelly v R

[2021] NSWCCA 154

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kelly v R [2021] NSWCCA 154

Hearing dates:

23 June 2021

Date of orders:

12 July 2021

Decision date:

12 July 2021

Before:

Payne JA at [1];
Price J at [2];
Wright J at [123]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal against sentence – historical sexual offences – whether Crown concession as to the objective seriousness of count 1 – whether error in assessment of applicant’s mental health where no submission was made about general deterrence – whether applicant suffered a serious injustice – whether aggregate sentence is manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J(1), 61M, 76, 76A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 25AA

Mental Health Act 2007 (NSW)

Cases Cited:

Aslan v R [2014] NSWCCA 114

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21

Brown v R [2020] NSWCCA 132

Cunningham v R [2020] NSWCCA 287

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

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

Griffin v R [2018] NSWCCA 259

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Jackson v R [2021] NSWCCA 15

Markarian v R (2005) 228 CLR 357; [2005] HCA 25

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

R v CG [2020] NSWDC 107

R v Greenaway [2020] NSWDC 97

R v Roberts [2019] NSWDC 510

Rahman v R [2020] NSWCCA 13

Stojanovski v R [2013] NSWCCA 334

Sumpton v R [2016] NSWCCA 162

Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Gregory Stephen Kelly (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Clarke (Applicant)
S Traynor (Respondent)

Solicitors:
James & Jaramillo (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/82481

Publication restriction:

Orders have been made under the Court Suppression and Non-Publication Orders Act 2010 that there be no publication of the names of persons, or anything that might identify them, referred to in this judgment as the victim or by the letters of JF.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 May 2020

Before:

Huggett DCJ

File Number(s):

2018/82481

Judgment

1. PAYNE JA: I agree with Price J.

2. PRICE J: Gregory Stephen Kelly (“the applicant”) seeks leave to appeal against the sentence imposed upon him in the District Court by Huggett DCJ (“the judge”) on 27 May 2020 in relation to offences that he committed between 1 March 1969 and 31 July 1977 upon the victim. At the time of the offences, the victim was aged between seven and 15 and the applicant was aged between 22 and 31. When he was sentenced, the applicant was 72 years old.

3. Counts 1, 2, 3, 4 and 7 of the indictment were offences of indecent assault upon a female person under the age of 16 years contrary to s 76 of the Crimes Act 1900 (NSW). The victim was aged seven at the time of the offending in count 1 and aged 13 at the time of the offending in counts 2, 3 and 4. When count 7 was committed, the victim was 15 years old.

4. The maximum penalty for count 1 was five years’ imprisonment whereas the maximum penalty had been increased to six years’ imprisonment when the applicant committed counts 2, 3, 4 and 7.

5. Count 5 was an offence of inciting the victim, then under the age of 16 years, namely 13 years, to commit an act of indecency contrary to s 76A of the Crimes Act. Count 6 was the commission of an act of indecency towards the victim, a female under the age of 16 years contrary to s 76A of the Crimes Act. The victim was 15 years old when count 6 was committed. The maximum penalty for an offence contrary to s 76A of the Crimes Act was two years’ imprisonment.

6. The applicant entered pleas of guilty to the counts on the indictment four days prior to his trial date.

7. The applicant asked the judge to take into account on sentence two offences of common assault, each of which had been placed on a separate Form 1.

8. The judge took into account the common assault that was committed between 7 March 1975 and 17 April 1975 in sentencing the applicant for count 4 as her Honour observed that this offence had been committed “during the same criminal episode as [c]ounts 2 to 5”. [1] The second Form 1 offence was taken into account by her Honour when sentencing the applicant for count 7 as her Honour observed that this offence had been committed “during the same criminal episode as [c]ounts 6 and 7”. [2]

   1. Tcpt, 27 May 2020, p 2.

   2. Tcpt, 27 May 2020, p 2.

9. Before imposing an aggregate sentence, the judge indicated the following sentences, each of which reflects a reduction of 10 per cent for the pleas of guilty.

Count 1: 12 months’ imprisonment

Count 2: 2 years 3 months’ imprisonment

Count 3: 4 years’ imprisonment

Count 4: 4 years 6 months’ imprisonment

(including Form 1 offence)

Count 5: 15 months’ imprisonment

Count 6: 15 months’ imprisonment

Count 7: 3 years 6 months’ imprisonment

(including Form 1 offence)

10. The judge imposed an aggregate sentence of eight years’ imprisonment commencing on 22 May 2020 and expiring on 21 May 2028 with an aggregate non-parole period of five years’ imprisonment commencing on 22 May 2020 and expiring on 21 May 2025.

Grounds of Appeal

11. The notice of appeal identifies the following grounds:

Ground 1

Having regard to the Crown’s concession, her Honour erred in her assessment of the objective seriousness of Count 1 and, in this context, denied the applicant procedural fairness.

Ground 2

Her Honour erred in her assessment of the applicant’s mental health condition.

Ground 3

The sentence imposed was latently erroneous.

The Offences

12. The facts of the offences were set out in a statement of agreed facts and were detailed in the judge’s remarks on sentence.

13. The victim became a ward of the State when she was four years old and in December 1968 when she was seven years old, she was placed in the care of a foster mother, Maureen Hunter, who is the biological half-sister of the applicant. When the victim arrived to live with Ms Hunter, she was told to call the applicant “Uncle Greg”.

Count 1

14. In the 1969 Easter holidays, when the victim was seven years old, the victim was at home with Ms Hunter’s mother. The applicant, then 22 years old, called into the house and went into the lounge room where the victim was sitting. He sat down and told the victim to stand beside him. He then placed his hand on the victim’s vagina on the outside of her shorts and moved it around, feeling her genital area before moving his hand up and fondling her chest on the outside of her clothes. This went on for four to five minutes until Ms Hunter’s mother entered the room and the applicant immediately stopped. When she left the room, the applicant gave the victim 50 cents and told her to “be quiet”.

Uncharged Acts

15. The agreed facts recounted that the applicant’s offending in count 1 was not an isolated incident, with similar touching occurring on other occasions. Between 1969 and 1974, the applicant would from time to time take the victim to his apartment in Redfern and on at least two occasions took nude polaroid photographs of the victim.

16. In November 1971, the victim was removed from Ms Hunter’s care due to concerns about the victim’s sexual behaviour, however, she returned to live there in September 1972.

17. Sometime between Easter 1973 and the victim’s twelfth birthday in August 1973, the victim was at the applicant’s Redfern unit. Whilst she was there, she met JF, who looked pregnant and was 14 years old. JF asked the victim if she would touch her. The victim felt scared and ran from the unit. The applicant caught up with her and told her not to tell anyone she had been at his unit or he would send her back to the children’s home.

18. On another occasion at the applicant’s Redfern apartment, the applicant walked the victim to the bedroom where JF was waiting. When the applicant left the room, JF began removing the victim’s clothes and JF also got undressed. JF was heavily pregnant. JF rubbed the victim’s breasts with her hands and directed the victim to touch her breasts. The applicant stood at the door and took photographs of the sexual encounter with his polaroid camera. When the victim saw the applicant, she quickly got dressed and ran from the unit calling JF a “fat ugly bitch”. [3] The applicant followed the victim saying words to the effect of “Don’t tell anyone or you will be sent back”. [4] The victim was aware that the applicant owned a gun and was fearful of this.

    3. Agreed Facts, p 2(11).

    4. Tcpt, 27 May 2020, p 5.

Counts 2 to 5 (and Form 1 attached to count 4)

19. Between 7 March 1975 and 17 April 1975, when the victim was 13 years old, the applicant took her to his new residence in Kogarah. JF was also there. The applicant led the victim into the bedroom and JF, then aged 15 years, followed. The applicant told the victim to take her clothes off and get on the bed, which she did. The applicant took photos of both girls naked on the bed.

20. The applicant walked over and rubbed the victim’s naked breasts with both hands (count 2). He then took a 20cm long candlestick, 3cm in diameter from the bedside table and rubbed KY jelly on it. The applicant inserted two fingers into the victim’s vagina. He removed his fingers and inserted the candlestick into her vagina (count 3). The applicant said to JF “We have to be careful because she is only young”. [5] When the victim complained that it hurt her, the applicant said, “You should be used to this. If you don’t let me continue I will get my dogs in the backyard to rape you”. [6]

    5. Tcpt, 27 May 2020, p 6.

    6. Tcpt, 27 May 2020, p 6.

21. The applicant removed the candlestick from the victim’s vagina and rubbed KY jelly on a dildo. The applicant inserted the dildo into the victim’s vagina and moved it in and out (count 4). As he did so, he knocked over some magazines revealing a small black pistol on the bedside table. After approximately five minutes, the applicant removed the dildo from the victim’s vagina.

22. The applicant then directed the victim to have “lesbian sex” [7] with JF. Feeling scared, the victim commenced licking JF’s vagina (count 5). The applicant, who was himself by then naked, had JF suck his penis. The applicant ejaculated into a handkerchief and told both girls to get dressed.

    7. Tcpt, 27 May 2020, p 6.

23. The victim picked up the pistol wanting to know if it was real. The applicant walked over to her and stopped her, causing her to fall onto the bed. The applicant pulled the victim’s head back and held the barrel of the gun to her head, saying, “Do not ever touch it again or I will use it on you” [8] (Form 1). The applicant then drove her home, buying her a bikini and warning her not to say anything about what had happened.

    8. Tcpt, 27 May 2020, p 7.

24. This was not an isolated incident, with similar events following thereafter.

25. When the victim was 13, she was returned to Bidura Children’s Home and was later sent to Ormond School, a detention centre.

Counts 6 and 7 (and Form 1 attached to count 7)

26. In July 1977, when the victim was 15 years old, living in a halfway house in Marrickville and was seven and a half months pregnant, the applicant knocked on her door and asked if he could take photographs of her while she was pregnant. The applicant pushed past her, grabbed her by the wrists and shook her. He slapped her face and said, “Get your gear off and do it, or I’ll kick you in the guts and then you’ll have no baby” [9] (Form 1). The victim was scared and so took her clothes off.

    9. Tcpt, 27 May 2020, p 8.

27. The applicant told her to insert pop up air fresheners into her vagina, directing her to squat over and lower herself onto the air fresheners. The applicant took photographs of the victim doing this (count 6).

28. The applicant removed his penis from his pants and said to the victim, “Suck it”. [10] The victim resisted by saying that her carer would be home any minute. Each time she said this, the applicant slapped her across the head and told her to, “Stop snivelling” [11] (count 7). After about half an hour, the applicant left the flat and threatened the victim that if she told anyone what had occurred he would shoot her.

    10. Tcpt, 27 May 2020, p 8.

    11. Tcpt, 27 May 2020, p 8.

Complaint to the Police

29. The victim reported the offences to police in 1998 but the investigation was suspended with no charges being laid. In 2016, the victim gave evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse and as a result of her evidence a referral was made to the NSW Police to investigate the applicant. In April 2017, a fresh police investigation was commenced and the applicant was arrested and charged on 14 March 2018.

30. On 22 May 2020, the victim read her Victim Impact Statement during the proceedings. [12] On sentence, the Crown tendered the Victim Impact Statement (Exhibit 1). Her Honour noted in her remarks on sentence that the victim “eloquently described her ongoing depression and anxiety, loneliness, her low self-esteem and the difficulty she experiences with trust and intimacy in relationships. She speaks also of a lost career and lost educational opportunities.” [13] The statement described the emotional, psychological and financial impact that the applicant’s offences have had on the victim.

    12. Tcpt, 22 May 2020, p 1.

    13. Tcpt, 27 May 2020, p 13.

Subjective Circumstances

31. The applicant did not give evidence in the sentencing proceedings. The written material tendered in his case included a report from Dr Richard Furst, a forensic psychiatrist, a report from his treating general practitioner Dr Thomas Robinson of the Greater Western Aboriginal Health Service, a report on COVID-19 and the impact on NSW prisoners, and three reports from Sydney West Area Health Service.

32. Dr Furst reported that the applicant was a 72 year old Aboriginal man who lived by himself. He had never married although he had been involved in a relationship of about 24 years. He had four children, all of whom were adults.

33. His father fought in World War II and had suffered physical and mental injuries. He died two months prior to the applicant’s 15^th birthday. The applicant described himself as ‘wild’ in his teenage years after his father’s death. Dr Furst reported there were indications the applicant was emotionally unstable at the time which included “burning himself and cigarettes”. [14] In his early thirties, the applicant took an overdose and presented to St George Hospital. The applicant told Dr Furst that he “also cut himself on numerous … occasions in the 1970s and 1980s, up to daily in frequency”. [15] The applicant described self-harming when he was emotionally upset and when hearing negative thoughts about being ‘useless’. Dr Furst considered this to be suggestive of Borderline Personality Disorder, rather than any other form of mental illness.

    14. Dr Furst Report, p 3.

    15. Dr Furst Report, p 3.

34. The applicant told Dr Furst that he had experienced symptoms of sadness and depression ‘all his life’, including symptoms of insomnia, low energy levels, lack of drive, loss of appetite and significant weight loss.

35. Dr Furst noted that the applicant was admitted to hospital in February for treatment of depression, being prescribed antidepressant medication.

36. The applicant had worked in various positions in his early adult life until the onset of cardiac problems and related disability in his fifties. He suffered his first heart attack in 1990 and continued to experience intermittent chest pain and shortness of breath. His most recent heart attack was in November 2011.

37. In relation to his offending, the applicant said to Dr Furst, “I’m sorry it happened. There’s nothing I can do. I can’t undo it.” [16] Dr Furst considered that the applicant had “no apparent sexual preoccupation or deviant sexual fantasies at the current time”. [17]

    16. Dr Furst Report, p 4.

    17. Dr Furst Report, p 4.

38. Dr Furst’s diagnosis of the applicant was that he met the criteria of the mental disorders (DSM-5) of Borderline Personality Disorder and Recurrent Major Depressive Disorder.

39. Dr Furst noted the applicant’s current medical problems. He considered that a diagnosis of ‘early dementia’ was a misdiagnosis and his cognitive deficits in 2014 were the product of depression, a condition referred to as “pseudo dementia”. Dr Furst opined that the applicant remained vulnerable to episodes of depression, self-harm and suicidal ideation. He considered that the applicant’s medical comorbidities were relevant to the applicant’s life expectancy and having regard to the significantly shorter life expectancy of Aboriginal males in Australia, Dr Furst stated that, “it would be reasonable to conclude [the applicant] is unlikely to live beyond the next several years”. [18]

    18. Dr Furst Report, p 6.

40. Dr Furst expressed the further opinion that the applicant’s diagnosis “would not be altered by his incarceration; however, incarceration is likely to exacerbate his diagnosed mental disorders”. [19]

    19. Dr Furst Report, p 7.

41. Dr Robinson reported that the applicant had a diagnosis of Major Depressive Disorder. He also had diabetes and ischaemic heart disease. From what he could see on the applicant’s file, Dr Robinson concluded the applicant was diagnosed with Major Depressive Disorder in 2015 when he was suffering from low mood and suicidal thoughts. Dr Robinson considered from talking to the applicant “he has probably suffered with recurrent episodes of depression for most of his life”. [20]

    20. Dr Robinson Report, p 1.

42. Dr Robinson reported that the applicant was started on antidepressant medication in 2015 which he had been on “fairly consistently”. [21] Dr Robinson further referred to the applicant’s involuntary hospital admission in 2018 due to suicidal thoughts, the progressive decline in his mental health condition, and his significant symptoms of depression.

    21. Dr Robinson Report, p 1.

43. Dr Robinson opined that there was a good chance that prison may worsen the applicant’s depressive symptoms and suicidal ideation.

44. A detailed 19 page report in relation to the potential risks associated with COVID-19 to persons in custody was also tendered as were various hospital records which confirmed that the applicant had been scheduled under the Mental Health Act 2007 (NSW) on 12 February 2020 for concerns over suicide ideation on a background of depression. The reports from the Sydney West Area Health Service provided details of the applicant’s medical background which included Ischaemic heart disease, Type II Diabetes, Hypertension and Hypercholesterolemia. In a joint report dated 1 June 2016, Dr Tan and Dr Cheuk referred to there being little evidence of cognitive decline. The doctors opined that the applicant had been given a premature diagnosis of dementia which “on hindsight was due to depression”. [22]

    22. Dr Tan Report.

45. The applicant’s prior criminal history reveals that his last offence being goods in custody was committed in November 2001 and dealt with in the Local Court by the imposition of a fine and a 12 month good behaviour bond.

The Remarks on Sentence

46. After detailing the offences to which the applicant had pleaded guilty and the agreed facts, the judge considered each offence. Her Honour explained that as the offences were committed well before the introduction of standard non-parole periods, it was unnecessary to make a finding as to where each offence fell in terms of objective gravity as compared to a notional offence within the mid-range.

47. Her Honour observed that whilst count 1 did not involve skin to skin contact, the victim was very young at the time and the touching of her genital and chest area through her clothing lasted for around four to five minutes in what was then her home. Her Honour found that count 1 was a “serious offence”. [23]

    23. Tcpt, 27 May 2020, p 12.

46. Her Honour said that counts 2 to 5 occurred when the victim was 13 and in the presence of another female child. Her Honour noted that count 5 involved the applicant inciting the victim to perform a very serious act of indecency upon that female child.

47. Counts 3 and 4, her Honour said, involved a serious indecent act, namely the penetration of the victim’s vagina by an object. Her Honour noted that during the commission of count 3, the victim made a complaint that the insertion of the candlestick was hurting her to which the applicant threatened that if she did not let him continue, he would have his dogs “rape her”. [24]

    24. Tcpt, 27 May 2020, p 12.

48. The judge found that counts 3, 4 and 5 represented extremely serious offending which her Honour said was “completely degrading, demeaning and exploitative of [the victim’s] youth although I acknowledge that Count 2 is somewhat less serious”. [25]

    25. Tcpt, 27 May 2020, p 12.

49. As to counts 6 and 7, the judge observed that both counts occurred when the victim was aged 15 and approaching the “upper age threshold of 16”. [26] Her Honour noted that the victim was seven and a half months pregnant, the offences occurred in what was then her home and were each preceded by a very serious assault.

    26. Tcpt, 27 May 2020, p 12.

50. The judge found count 6 to be particularly degrading and demeaning. Her Honour said the applicant took photographs of the victim while she was naked and pregnant as she engaged in an indecent act “involving penetration of her genitalia at his direction and having been assaulted and threatened (which included a threat to her unborn baby)”. [27]

    27. Tcpt, 27 May 2020, p 12.

51. Her Honour observed that count 7 occurred in circumstances where the applicant removed his erect penis from his pants and directed the victim to suck it and when she refused, slapped her across the head, thereafter threatening to shoot her.

52. The judge found that counts 6 and 7 represented “extremely serious offending”. [28]

    28. Tcpt, 27 May 2020, p 12-13.

53. Her Honour referred to the Victim Impact Statement, noting the victim’s description of the considerable impact the offences had on her “emotionally, psychologically and financially”. [29] Her Honour said that she had regard to the victim’s trauma and harm which was still manifest in various ways and likely to continue in accordance with s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    29. Tcpt, 27 May 2020, p 13.

54. The judge said that in paying close regard to the applicant’s subjective circumstances, she had been assisted by the reports from Dr Furst and Dr Robinson and by various medical and hospital reports. Her Honour then detailed the applicant’s subjective case. Shortly after referring to Dr Furst’s diagnosis of Borderline Personality Disorder and Recurrent Major Depressive Disorder, and the report from Greater Western Aboriginal Health Service of the applicant’s continuing significant symptoms of depression and suicidal ideation, her Honour said:

“It is not suggested that the [applicant’s] mental health concerns bear any causal connection with his offending. However, it is submitted such concerns will make a custodial sentence more difficult for him.” [30]

30. Tcpt, 27 May 2020, p 16.

57. The judge accepted that incarceration “will likely exacerbate his physical and mental health concerns and will make his time in custody more onerous”. [31]

    31. Tcpt, 27 May 2020, p 16.

58. The judge found that the evidence did not establish the applicant was genuinely remorseful or that he had any insight into the harm caused by his offending.

59. Her Honour accepted that the delay between the offending and the time the applicant was being sentenced meant that the applicant had demonstrated that he had not reoffended and rehabilitated himself. Her Honour was satisfied that the applicant was unlikely to reoffend.

60. Her Honour was prepared to accept that the applicant was a person of good character at the time he committed count 1 which would be taken into account on the indicative sentence for that count. However, as the applicant went on to commit counts 2 to 7, her Honour considered that the weight to be given to his good character was “diminished to a degree by reason of … his offending continu[ing] for a number of years”. [32]

    32. Tcpt, 27 May 2020, p 17.

61. The judge found that the victim’s delay in making an “immediate or a relatively immediate complaint was to a large measure a result of what the [applicant] both said and did to the victim. … Furthermore, the delay was also referable to apparent attitudes and perceptions seemingly held by police in the 1980s regarding the sufficiency of the evidence”. [33]

    33. Tcpt, 27 May 2020, p 18.

62. Her Honour referred to different considerations arising from delay when sentencing the applicant for historic offending.

63. Her Honour made the following findings concerning delay:

1. Delay permitted the applicant to demonstrate he had not reoffended;

2. There was no evidence suggesting his enjoyment of life had been affected;

3. He had escaped justice for decades and enjoyed a life free from punishment for offending; and

4. Balanced against this, was that the applicant would serve his sentence in his later years.

64. The judge said that while the custodial system has the capacity to house and care for elderly prisoners with health concerns, “custody for this [applicant] will be more onerous than were he a younger man, particularly given the consequences of the COVID-19 pandemic”. [34]

    34. Tcpt, 27 May 2020, p 19.

65. Her Honour referred in some detail to s 25AA of the Crimes (Sentencing Procedure) Act with which her Honour said she had taken care in its application to the present proceedings.

66. In considering concurrency, accumulation and totality, the judge said that whilst counts 2 to 5 occurred during one criminal episode as did counts 6 and 7, the criminality of not one of these offences could be reflected by the criminality of any other. Her Honour found that there was to be a degree of accumulation of the indicative sentences.

67. The judge considered the impact of COVID-19 and accepted that conditions in custody were temporarily more onerous because of the measures implemented by Corrective Services to prevent any outbreak and to protect inmates.

68. Her Honour found that the risk COVID-19 could potentially enter a gaol where the applicant was detained and the impact of the current measures to prevent an outbreak were heightened for the applicant “because of his health concerns and age” [35] which her Honour said she had taken into account in the applicant’s favour in determining the appropriate sentence.

    35. Tcpt, 27 May 2020, p 21.

69. The judge said “[t]here can be no doubt that deterrence, denunciation and punishment” [36] were important considerations of the applicant’s “low risk of re-offending” and was satisfied that the sentence to be imposed would operate as a significant personal deterrent.

    36. Tcpt, 27 May 2020, p 22.

70. The judge found special circumstances being the degree of partial accumulation in arriving at the final sentence, the applicant’s first custodial sentence and his relatively advanced age which would likely make custody more onerous for him than for a younger, fitter and healthier man, particularly with the present COVID-19 concerns.

71. The judge said that in the sentencing exercise, she had regard to the applicant’s age and as his age advances, his existing health issues might worsen and further health issues might develop. Her Honour was mindful that age and health were not the overriding consideration or to be afforded disproportionate weight in the sentencing process.

72. The judge indicated the sentences and imposed the aggregate sentence as detailed at [9]-[10] above.

Ground 1 – Having regard to the Crown’s concession, her Honour erred in her assessment of the objective seriousness of Count 1 and, in this context, denied the applicant procedural fairness

The applicant’s submissions

73. The applicant submitted that during the proceedings on sentence a concession was made by the Crown that count 1 fell at the lower end of the range of objective seriousness. The applicant argued that it was not implicit in the judge’s sentencing remarks that her Honour accepted the Crown’s concession and found the objective seriousness of count 1 to be at the lower end of objective seriousness. The applicant contended that he had been denied procedural fairness. The applicant referred to the written submissions before the judge at the sentencing hearing.

74. In the written submissions on sentence, the applicant submitted that the objective seriousness of the charges fell “into about the mid-range, or slightly above the mid-range, with the exception of [c]ount 1, which it is submitted falls below the mid-range of objective seriousness”. [37]

    37. Applicant’s Written Submissions on Sentence, p 2.

75. In the Crown’s written submissions on sentence, the Crown stated that each of the offences “in their own way, are very serious examples of offending”. [38]

    38. Crown’s Written Submissions on Sentence, p 3.

76. During the proceedings on sentence, the following exchange took place between the judge and the Crown:

“Crown: … the parties seem to diverge on the question of objective gravity. The submission on behalf of the [applicant] is that the offences fall about the midrange or slightly above the midrange, and for the reasons I have attempted to outline in the written submissions, the Crown says that in their own way each of these offences falls at the upper end of objective gravity.

Her Honour: Perhaps with the exception of count 1, the touching on the outside of the clothing.

Crown: Perhaps. It is conceded that that offence of the three falls at the lower end. That is the offence of which the victim is significantly younger than the others and the physical action itself is the touching of the genitals. The Crown says when you look at the physical acts that encompass the remaining counts on the indictment, together with aspects of humiliation and degradation that come with those acts, that they are each in their own way offences that fall at the upper end”. [39]

39. Tcpt, 22 May 2020, p 6(27-42).

77. In her remarks on sentence, the judge described count 1 as a “serious offence”, [40] count 2 as “somewhat less serious”, [41] and counts 3 to 7 as “extremely serious offending”. [42]

    40. Tcpt, 27 May 2020, p 12.

    41. Tcpt, 27 May 2020, p 12.

    42. Tcpt, 27 May 2020, p 12-13.

78. The applicant contended that:

1. Her Honour indicated during submissions on 22 May 2020 that count 1 would “perhaps” [43] not fall at the upper end of objective seriousness;

2. The Crown “conceded” [44] on 22 May 2020 that count 1 fell at the “lower end” of objective seriousness;

3. Her Honour stated in her remarks on sentence (incorrectly) that the Crown had contended that “each” of the offences “falls at the upper end of seriousness” [45] even though she referred to the distinction in the applicant’s position on the objective gravity in relation to count 1; and

4. Her Honour characterised the objective seriousness of count 1 as “a serious offence”. [46]

   43. Tcpt, 22 May 2020, p 6(33).

   44. Tcpt, 22 May 2020, p 6(36).

   45. Tcpt, 27 May 2020, p 9.

   46. Tcpt, 27 May 2020, p 12.

The Crown’s submissions

79. The Crown submitted that the applicant’s characterisation of the Crown’s oral submissions during the sentencing hearing was not correct and no such concession was made. The Crown further submitted that it is clear that the judge was querying whether count 1 was really at the ‘upper end’ of objective gravity.

80. The Crown argued that the response of the Crown Prosecutor to her Honour, “Perhaps. It is conceded that that offence of the three falls at the lower end”, [47] was not a concession but rather an acknowledgement that count 1 was the lower of the three episodes of offending in terms of the seriousness of the conduct.

    47. Tcpt, 22 May 2020, p 4(36-37).

81. Furthermore, the Crown submitted that the victim’s young age, vulnerability as a foster child, and the applicant’s payment of money to tell the victim to be quiet, were inconsistent with a concession that the conduct fell at the lower end of the range of objective seriousness.

82. The Crown submitted that the judge understood the position of the Crown as to the ranking of the various episodes through her descriptions of the offences as follows:

1. Count 1 was a “serious offence”; [48]

2. Counts 3, 4 and 5 represented “extremely serious offending” [49] with count 2 being “somewhat less serious”; and

3. Counts 6 and 7 represented “extremely serious offending”. [50]

   48. Tcpt, 27 May 2020, p 12.

   49. Tcpt, 27 May 2020, p 12.

   50. Tcpt, 27 May 2020, p 12-13.

83. The Crown submitted that the indicative sentences for the indecent assault offences reflected her Honour’s findings. Count 1 had an indicative sentence of 12 months which was considerably less than the indicative sentences for the other counts of indecent assault.

84. The Crown contended that there was nothing in the comments made by the judge during the sentencing proceedings that either expressly or impliedly indicated that she had accepted the Crown’s submissions as to objective seriousness.

Consideration

85. It has often been stated that a sentencing judge is not bound to accept a Crown concession as to the objective gravity of an offence. [51] However, the applicant argues that it is unclear from the judge’s sentencing remarks if she acted upon the Crown’s concession that count 1 fell at the lower end of the range of objective seriousness. In advancing his argument, the applicant cited DL v The Queen [52] where the High Court (Bell, Keane, Nettle, Gordon and Edelman JJ) said at [39]:

“Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. It was an error to hold that the appellant had had ample opportunity to be heard on all aspects of his appeal.” (footnotes omitted)

51. Stojanovski v R [2013] NSWCCA 334 at [34] (Hoeben CJ at CL); Brown v R [2020] NSWCCA 132 at [31] (Harrison J).

52. (2018) 265 CLR 215; [2018] HCA 32.

86. In my view, there is little merit in the applicant’s argument. I am not persuaded that the words used by the Crown in the exchange “[i]t is conceded that the offence of the three falls at the lower end” [53] was a concession or could be reasonably understood to be a concession that count 1 fell at the lower end of the range of objective seriousness.

    53. Tcpt, 22 May 2020, p 6(36).

87. The judge had canvassed with the Crown whether count 1 fell at the upper end of objective gravity and it is evident from the exchange during which the Crown referred to the victim’s “significantly younger” [54] age and the “touching of the genitals”, [55] that the Crown was conceding that count 1 of the three episodes of offending fell at the lower end of the upper end of objective gravity.

    54. Tcpt, 22 May 2020, p 6(37).

    55. Tcpt, 22 May 2020, p 6(38).

88. Perhaps most telling is the applicant’s counsel’s response to the Crown’s oral submissions:

“In respect of the question of objective seriousness, the position is one where your Honour ultimately makes a finding as to objective gravity via a synthesis of all the matters in s 21A. There is clearly a difference in the position put between the defence and the prosecution, but I cannot take it much further than that at this stage.” [56]

56. Tcpt, 22 May 2020, p 8(22-26).

89. It is plainly clear that the applicant’s counsel considered that the difference in the positions of the parties as to objective gravity of all the offences remained and did not understand that the Crown had conceded that count 1 fell below the mid-range of objective seriousness.

90. Furthermore, there was simply nothing in the exchange between the judge and the Crown that could have reasonably led to either party having an expectation that her Honour had a concluded view on the objective gravity of count 1. The applicant has not been denied procedural fairness.

91. Ground 1 of the appeal has not been made out.

Ground 2 – Her Honour erred in her assessment of the applicant’s mental health

The applicant’s submissions

92. The applicant submitted that the judge did not find that, by virtue of his mental illness, he was an unpersuasive vehicle for general deterrence. The applicant conceded that his counsel did not make this submission to the judge. However, the applicant contended that this error resulted in a serious injustice.

93. The applicant referred to Dr Robinson’s opinion that the applicant suffered from Major Depressive Disorder which had been prevalent most of his life. Further reference was made to the prescription of antidepressants in 2015, to his admission to Blacktown Hospital, and to Dr Furst’s diagnosis of Borderline Personality Disorder and Recurrent Major Depressive Disorder.

94. The applicant contended that although no submissions were made as to general deterrence, this did not mean that no consideration should have been given to the impact that his mental illness may have had on the principle of general deterrence.

The Crown’s submissions

95. The Crown submitted that the applicant recognised that his counsel made no submissions to the judge that his mental health condition made him an unpersuasive vehicle for general deterrence. The Crown argued that the applicant relied on the evidence of his mental health to support a finding of special circumstances [57] and that a custodial sentence would exacerbate his mental health disorders. [58] These submissions were accepted by the judge. [59]

    57. Tcpt, 22 May 2020, p 4(32-34).

    58. Tcpt, 22 May 2020, p 8(1-20).

    59. Tcpt, 27 May 2020, p 16.

96. The Crown argued that where no submission was made to the judge on the relationship between his mental condition and the weight to be given to general deterrence, it was not incumbent on the judge to go further in terms of how that particular condition may have been relied upon or referred to in the sentencing remarks.

Consideration

97. During oral submissions before the judge, the applicant’s counsel drew her Honour’s attention to Dr Furst’s diagnosis of “persistent major depressive disorder” and “possible borderline personality disorder”. [60] Her Honour was further referred to Dr Robinson’s opinion that the applicant’s prognosis was “likely to be poor having regard to the recurring and longstanding nature of his depression”. [61] The applicant’s counsel put to her Honour that:

“Those are matters that I would ask your Honour to take into account in considering the question of special circumstances in this case”. [62]

60. Tcpt, 22 May 2020, p 4(22-24).

61. Tcpt, 22 May 2020, p 4(27-28).

62. Tcpt, 22 May 2020, p 4(32-34).

98. In oral submissions in reply, the applicant’s counsel responded to the Crown’s submissions that there was no evidence the applicant’s mental and physical problems could not be adequately treated in hospital and there was no causal connection between his mental health condition and the offences, by contending that “those mental health difficulties would be exacerbated by any stressful situation, but such a stressful situation also includes a custodial sentence”. [63]

    63. Tcpt, 22 May 2020, p 8(18-20).

99. It is evident from the remarks on sentence that the judge gave careful consideration to the reports of Dr Furst and Dr Robinson and to the applicant’s submissions. Her Honour accepted that the applicant’s incarceration would likely exacerbate his physical and mental health concerns and would make his time in custody more onerous. In finding special circumstances, her Honour explained that the applicant’s relatively advanced age was likely “to make custody more onerous for him than for a younger, fitter and healthier man (particularly with the present COVID-19 concerns)”. [64]

    64. Tcpt, 27 May 2020, p 22.

98. Her Honour went on to say that in sentencing the applicant she had regard to the fact that “as his age advances, his existing health issues might worsen”. [65]

    65. Tcpt, 27 May 2020, p 22.

99. As is clear from the sentencing remarks, her Honour made findings on sentence that were consistent with the applicant’s submissions on his mental illness. However, when referring to general deterrence, her Honour said:

“There can be no doubt that deterrence, denunciation and punishment are important considerations in the present sentencing exercise.” [66]

66. Tcpt, 27 May 2020, p 22.

102. It is well known that mental illness may have the consequence that an offender is an inappropriate vehicle for general deterrence. [67] Furthermore, it is not necessary for there to be a causal connection between the mental illness and the crime. [68]

     67. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

     68. Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21 at [36].

103. No submission was made to the judge that the applicant’s mental illness made him an inappropriate vehicle for general deterrence.

104. This Court has stated on many occasions that it is a court of error and not a forum for the revision and reformulation of the case made before the sentencing judge. Arguments not advanced in the court below will only be entertained in “rare” circumstances such as to correct a “miscarriage of justice or serious injustice”. [69]

     69. Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81]-[82] (Johnson J); Sumpton v R [2016] NSWCCA 162; Griffin v R [2018] NSWCCA 259; Jackson v R [2021] NSWCCA 15 at [89] (Price J).

105. The applicant argues that he has suffered a serious injustice.

106. The assessment of the extent that a person’s mental health impacts upon a sentence is a discretionary decision to be made by a sentencing judge. Simpson J stated (Adams and McCallum JJ agreeing) in Aslan v R,[70] there is no presumption because an offender suffers from some mental impairment or disability that he or she is an inappropriate vehicle for general deterrence. Each case depends on its own particular facts and circumstances.

     70. [2014] NSWCCA 114 at [34].

107. The offences in the present case involved very serious sexual offending against a victim who was aged between seven and 15. This Court has emphasised that general deterrence, denunciation and the protection of the community are principles of importance when sentencing for cases involving child sexual assault. The importance of those principles does not diminish because the offences might be regarded as “historical”. Sexual offending against children remains a prevalent offence.

108. The judge gave favourable consideration to the applicant’s mental health by the findings her Honour made. Nothing more, in my opinion, was required. The applicant has not suffered a serious injustice.

109. This ground of appeal has not been established.

Ground 3 – The sentence imposed was latently erroneous

The applicant’s submissions

110. The applicant contended that the sentence imposed by the judge was latently erroneous. The applicant referred to what were said to be four comparable decisions in support of his contention.

111. The applicant further referred to “the Crown’s concession on [c]ount 1 and that a charge of indecent assault, at the relevant time, incorporated a diverse range of conduct (including fellatio and cunnilingus)”. The applicant submitted that the sentence imposed was unreasonable or plainly unjust.

The Crown’s submissions

112. The Crown submitted that the aggregate sentence was not unreasonable or plainly unjust when regard is given to the vulnerability of the victim, the extremely degrading, demeaning and violent offending, and the separate instances when the offending occurred.

113. The Crown submitted that none of the four cases referred to by the applicant demonstrated that his sentence was manifestly excessive. The Crown further argued that these cases did not establish a sentencing range for historical child sexual offences since the introduction of s 25AA.

Consideration

114. This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [71] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [72]

     71. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

     72. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

115. It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles, and appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. [73]

     73. Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

116. A difficulty for the applicant in advancing his argument of manifest excess is that Ground 1 has not been established. However, he seeks to bolster his complaint of manifest excess by reference to four cases. The sole decision of this Court is in Cunningham v R (‘Cunningham’)[74] where the complaint of manifest excess was dismissed.

     74. [2020] NSWCCA 287.

117. In any event, the limitations on the use of comparable decision in complaints of manifest excess were articulated by Beech-Jones J in Rahman v R:

“[29] The applicant sought to establish a case of manifest excess by reference to an analysis of sentences that were either imposed, or at least considered, by this Court in other cases concerning offences under s 61I. There are very significant limitations on an attempt to use such decisions for the purpose of establishing a case of manifest excess. As was noted in Hili (at [54]), a review of earlier sentences only establishes a range of sentences that have in fact been imposed. It does not establish that range is the correct range or that the upper or lower limits of that range are the correct upper and lower limits. A review of sentences imposed in other cases is “useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal” (Wong at [59]). Otherwise, in reviewing sentences considered in this Court, it is necessary to consider the different contexts in which they are considered, namely whether they involve a review of a sentence imposed at first instance for manifest excess, the imposition of a fresh sentence by this Court following a successful appeal by an offender, a Crown appeal against a sentence imposed at first instance, and the exercise of the sentencing discretion by this Court on a Crown appeal. Each of those contexts has its own set of applicable principles.”[75]

75. [2020] NSWCCA 13.

118. In Cunningham, the offender was sentenced for one offence of aggravated indecent assault (victim under the age of 16 years) contrary to s 61M of the Crimes Act for pressing his erect penis against the stomach of the victim, then aged 11. The maximum penalty for this offence was seven years’ imprisonment. He was further sentenced for an offence of aggravated sexual intercourse (victim under the age of 16 years) contrary to s 61J(1) of the Crimes Act by digital penetration when the victim was 13. The maximum penalty for this offence was 20 years’ imprisonment. The sentencing judge assessed the objective gravity of count 1 as being at the lower end of the range and count 2 as being near the middle of the range. The issues in the appeal were the application of the principle of totality which was complicated by the application of s 25AA and whether the sentence of 5 years 9 months’ imprisonment with a non-parole period of 3 years 6 months was manifestly excessive. The offender had received a 25 per cent discount for his guilty pleas. Hoeben CJ at CL (with whom Harrison and Bellew JJ agreed) dismissed each ground of appeal.

119. In my view, Cunningham provides no support for the applicant’s complaint of manifest excess. The objective gravity of the applicant’s offending in counts 2 to 7 was more serious than the offences in Cunningham. Furthermore, the victim in the present case was threatened with extreme violence when the barrel of the gun was held to her head (Form 1 attached to count 4), and, whilst being seven and a half months pregnant, with a kick “in the guts” [76] following a slap to her face if she didn’t comply with the applicant’s demands (Form 1 attached to count 7). The lesser objective gravity and differences in maximum penalties in Cunningham did not assist in establishing manifest excess.

     76. Tcpt, 27 May 2020, p 8.

120. The applicant’s submissions refer to three sentences imposed by single judges. [77] I am not persuaded that any of these sentences provide support for the applicant’s complaint that his sentence is “unreasonable” or “plainly unjust”. In a carefully considered sentencing judgment, her Honour assessed the objective seriousness of the offences, and took into account the applicant’s subjective case. Her Honour was mindful of the relevant maximum penalties and applied s 25AA. Her Honour assiduously considered the questions of totality, accumulation and special circumstances and after indicating the sentences that would have been imposed after a discount of 10 per cent, she sentenced the applicant to an aggregate sentence of 8 years’ imprisonment with a non-parole period of 5 years’ imprisonment.

     77. R v Roberts [2019] NSWDC 510; R v Greenaway [2020] NSWDC 97; R v CG [2020] NSWDC 107.

121. In my view, the aggregate sentence imposed by the judge was well within a legitimate exercise of her Honour’s sentencing discretion. I do not consider that the sentence is manifestly excessive.

122. The orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

123. WRIGHT J: I agree with Price J.

**********

Endnotes

Decision last updated: 12 July 2021