LB v R

[2019] NSWCCA 151

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

LB v R [2019] NSWCCA 151

Hearing dates:

12 June 2019

Date of orders:

12 July 2019

Decision date:

12 July 2019

Before:

Payne JA at [1]
Davies J at [2]
Button JJ at [79]

Decision:

(1) Extend time for the filing of the Notice of Appeal to 25 January 2019.

 

(2) Grant leave to appeal.

 (3) Dismiss the appeal.

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – applicant sentenced after trial – applicant found guilty of two child sex offences contrary to ss 66A(1) and 61M(2) – two separate complainants – first complainant was the 8 year old sister of the applicant’s then partner – second complainant was the 5 year old daughter of the applicant’s then partner – touching and digital penetration – applicant sentenced to an aggregate sentence of 13 years’ imprisonment with a non-parole period of nine years – whether the s 66A sentence incorporated factual error – where the sentencing judge made erroneous factual finding as to bleeding caused by the offending – finding only one of the considerations taken into account when assessing objective seriousness – whether the sentencing judge erroneously assessed the objective seriousness of the offending – whether the sentencing judge erred in the weight she afforded to the standard non-parole period – whether the sentencing judge erroneously found that the applicant could address his rehabilitation needs in custody – whether the sentencing judge failed to give adequate consideration to the causal role of substance addiction in the offending and the applicant’s disadvantaged background – whether special circumstances should have been found – whether the sentence was manifestly excessive – no statistics or comparative cases were provided to support applicant’s high-level assertion that the sentence was plainly unreasonable and unjust – significant degree of concurrency between two individual sentences – no manifest excess found – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) ss 61M, 66A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 44, 166

Cases Cited:

Jiang v R [2010] NSWCCA 277
Muldrock v The Queen (2011) 244 CLR 120
R v Fidow [2004] NSWCCA 172
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
TS v R [2007] NSWCCA 194

Texts Cited:

Nil

Category:

Principal judgment

Parties:

LB (Applicant)
Crown (Respondent)

Representation:

Counsel:
C Doosey (Applicant)
K Jeffreys (Respondent)

  Solicitors:
Johnston Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/287297 & 2016/223285

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

Noman SC DCJ

Before:

13 October 2017

File Number(s):

2015/287297 & 2016/223285

Judgment

1. PAYNE JA:   I agree with Davies J.

2. DAVIES J:   The applicant was convicted after trial of the following two offences:

Count 1: Indecent assault of a child under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is ten years’ imprisonment. There is a standard non-parole period of eight years.

Count 2: Sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act. The maximum penalty for this offence is imprisonment for life. There is a standard non-parole period of fifteen years.

3. On 13 October 2017 the applicant was sentenced by Judge Noman SC as follows:

Count 1:   Imprisonment for five years commencing 1 October 2015 and expiring 30 September 2020, with a non-parole period of three years nine months expiring 30 June 2019.

Count 2:   Imprisonment for 12 years commencing 1 October 2016 and expiring 30 September 2028, with a non-parole period of eight years to expire 30 September 2024.

4. The total sentence was therefore 13 years’ imprisonment with a non-parole period of nine years expiring 30 September 2024.

5. Judge Noman SC also convicted the applicant of a breach of an apprehended domestic violence order which was contained on a s 166 certificate. The sentence was a s 10A conviction without penalty.

6. The applicant now appeals against the sentences imposed upon the following grounds:

1. The s 66A sentence incorporates factual error.

2.   Error in the assessment of objective seriousness.

3.   Error in the weight placed on the stipulated standard non-parole periods.

4.   Error in failing to recognise the need for prolonged community based rehabilitation, post release.

(a)   Reliance on a factual error in declining to make a finding of special circumstances based on the need for prolonged community based rehabilitation, post release.

(b)   Error in disregarding the causal role that substance addiction had played in the offending.

(c)   Insufficient Response to [LB’s] extremely disadvantaged background.

5.   The sentences are manifestly excessive.

7. The Notice of Intention to Appeal was filed on 31 October 2017 but the Notice of Appeal was not filed until 25 January 2019. An affidavit from the applicant’s solicitor adequately explains the delay. The Crown does not oppose an extension of time. In my opinion, an extension of time should be granted.

The offending

8. Her Honour found the following facts consistent with the jury’s verdict.

9. Count 1 concerned offending against HU who was the sister of the applicant’s partner CU. HU was aged 8 at the time of the offending. The applicant was aged almost 33.

10. Count 1 occurred on an occasion in March 2015 when HU's parents went to collect a TV and left her with her sister CU. CU and HU then stayed at the applicant’s family home, where he lived with his mother.

11. HU said that she was on the couch in the lounge room when the applicant put a blanket on her and took her to his bedroom. She said that she was placed on a grey woollen couch in the applicant’s bedroom. She said he placed his finger inside her shorts and touched her on her "private", directly on the skin. Neither HU nor the applicant said anything, according to HU.

12. HU said that she ran from the room, she was crying and she told her sister that she was missing her parents. HU did not complain to her mother until October 2015, after AU had complained about the assault on her that constituted Count 2, and after the applicant was in custody.

13. Count 2 concerned AU who was a child of the applicant’s partner CU. AU was aged five at the time of the offending. Count 2 occurred when AU was driven to the applicant’s house in September 2015. AU's mother, CU, arrived separately a short time later. AU said that she was in the applicant’s bedroom. AU described how the applicant placed his hand on her stomach and pulled her pants down. She said, "Who's doing that" and "Ouch, it hurts”. The applicant said, "Okay". AU said that she screamed. She said that there was no one else in the room.

14. She said that she left the room and went to Aunty Bev's room, the applicant’s mother, to sleep. She said she told her aunt KU (CU’s sister), and then Kelly about what the offender did. Kelly was KU’s partner. AU told Kelly that the applicant put his hand in her pants, inside and that it really hurt.

15. The police were notified. The applicant was arrested solely in response to the allegation made by AU. He declined to be interviewed by police. The applicant did not give evidence at trial but he did call his mother.

Grounds of appeal

Ground 1:   The s 66A sentence incorporates factual error.

16. When considering the nature of the offending involved in count 2 the sentencing judge said this:

I have had regard to the nature of the sexual intercourse involved for the offence involving KU [scil. AU]. There is no generally applicable hierarchy of offending determined by the type of penetration I have considered the type of penetration involved as part of the overall circumstances of offending. I note however that the offending involved digital penetration that caused pain and some bleeding. The duration of the touching was brief.

17. The applicant submitted that there was no basis for a finding of there being “some bleeding”, and the only evidence supporting the finding of pain was evidence from AU, her aunt KU, and Kelly that AU experienced pain “going to the toilet” some days after the assault. The evidence was that the pain was felt on 23 (or 25) September 2015 when the offence was particularised as having occurred between 15 and 20 September 2015.

18. The Crown accepted that the reference to bleeding was a misstatement, but submitted that her Honour’s single reference to it meant that it could be inferred that her Honour did not rely upon it as a significant matter. The Crown submitted that the bleeding was just one of a large number of matters considered by her Honour in forming a view about the objective seriousness of the offence.

19. The Crown submitted that there was evidence to justify the finding of pain both at the time of the offending and later when AU went to the toilet.

Determination

20. There was ample evidence to support her Honour’s statement that the digital penetration caused pain. In her record of interview on 25 September 2015 AU said the following:

A.   And it hurts when he put his, um, finger there, it hurts.

Q80.   [14:41] Where did he put his finger?

A.   Um, in my private part.

Q81.   He put his finger in your private part? And ---

A.   It really hurts.

…

Q93.   OK. So I wasn't there when [LB] put his finger in your private part at his house a long time ago. Are you able to tell me everything that happened

from beginning to end?

A.   Yep.

Q94.   OK.

A.   And it really hurts.

Q95   Does it hurt now?

A.   At, at, when I went to toilet at home, um, it hurt.

Q96.   Uh-huh. When was that?

A.   Now, when I was at home.

Q97.   Today?

A.   Yep. Now, it, it, um, hurt.

…

Q121.   How did you know he was doing that if you were asleep?

A.   Um I woke up, wait, um ---

Q122.   Sit up. Sit up. So how did you he [sic] did it when you were asleep?

A   Um, well, I said this, um, Who's doing that stop. And, and I said, Ouch, it hurts.

Q123.   You said, Ouch, it hurts?

A.   Uh-huh.

Q124.   But how did you know that he did that when you were asleep?

A.   'Cause I can feel it.

Q125.   You could feel it? Yep.

A.   And I woke up and I said, Can you stop that.

…

Q236.   Why were you screaming?

A.   'Cause it really hurts.

Q237.   What really hurt?

A.   When he put his, um, um, um, finger in my private part.

21. AU was not challenged in cross-examination about her statements that the digital penetration had hurt her. The only questions she was asked about “hurt” in relation to the offending were the following (T116-7):

Q.   Did you tell anyone that [LB] put his hand in your onesie and in your pants and it hurt?

A.   No.

…

Q. Other than when you were talking to the police in the video, had your private part ever hurt to wee?

A. Once.

Q. So you told police that it was on that day that you were talking to them in the video.

A. Yes.

Q. That's the only time that it's hurt to wee?

A. Yes.

22. There was also evidence from Kelly Brown and Irene Mitchell, AU’s maternal grandmother, about what AU had said in relation to experiencing pain when she went to the toilet.

23. Although the applicant’s argument in relation to the suffering of pain related chiefly to whether the pain experienced by AU when urinating could be related to the offending, her Honour made no finding that it was so related. Nevertheless, such a finding was certainly available on the evidence. AU had said in answer to questions 81 and 94 that it hurt where the applicant put his finger in her private part. She was then immediately asked if it hurt at the time of the interview (at least five days after the offence) and she said that it did when she went to the toilet. The only rational inference that can be drawn from those answers is that the hurt she felt on urinating a few days later was related to the hurt caused by the applicant in the offending.

24. It may be accepted that her Honour was in error in referring to bleeding. That appears to be a confusion with AU’s statement during her interview that her nose was bleeding during the interview. Nevertheless, the only way the finding of bleeding was apparently taken into account was in the assessment of objective seriousness. As will be discussed when considering ground 2, her Honour took a large number of matters into account when assessing objective seriousness. Even if the erroneous bleeding was excluded from the matters considered, it cannot be said that her Honour’s assessment of objective seriousness was erroneous.

25. I would reject this ground.

Ground 2:   Error in the assessment of objective seriousness

26. Her Honour said this in relation to the objective seriousness:

Having considered all of the factors operating to form the seriousness of the individual offending, I consider that each falls just below the mid-range of offending.

27. The applicant submitted that the conduct did not constitute conduct falling "just below" the mid-range. The applicant submitted in relation to the offence involving AU that the actions of the applicant were at the lower end in terms of the seriousness of conduct contemplated by the section. The use of his hand/finger did not carry the same potentiality for serious injury that other means of penetration of a young child would. The applicant submitted that the assessment of objective seriousness incorporated a finding of injury/bleeding that was not supported by the evidence.

28. The applicant submitted that the following matters mitigate the seriousness of that offending:

• The intercourse was momentary;

• The conduct was not part of an ongoing or prolonged course of conduct;

• There was no contact, either visual or physical with the applicant’s genitalia or body, other than his hand/finger;

• There was no "grooming", manipulation or coercive conduct, either to permit the assault or conceal its occurrence;

• The conduct was spontaneous and opportunistic; and

• The conduct ceased immediately after AU asked him to stop.

29. As far as the offence against HU was concerned (Count 1), the applicant submitted that where the sentencing judge found the offending to be just below the mid-range of objective seriousness, her Honour imposed a sentence representing half the maximum penalty. The applicant submitted that it was difficult to reconcile that outcome with the expressed intention of her Honour to extend some leniency to the applicant on other bases.

30. The Crown noted various findings made by the sentencing judge, which were said to have informed her Honour’s assessment of the objective seriousness of that offending. Those findings were these:

• Young child victims are especially vulnerable;

• The offences entailed a degree of breach of trust;

• The ages of each complainant within the range of the element of the offence;

• The offence against HU involved the applicant's skin directly touching the most intimate body region of the child, although the touching was brief;

• The type of penetration involved in the offence against AU was noted as being "digital penetration that caused pain and some bleeding", again noting the touching was brief;

• The offending was opportunistic; and

• There were no threats or coercion, but none was needed due to the relationship between the applicant and complainants.

31. The Crown drew attention to the submissions made at the sentence hearing about objective seriousness. The Crown submitted that the findings as to objective seriousness were open to her Honour and were substantially similar to what had been submitted by the applicant's counsel at sentence.

Determination

32. At the sentence hearing, counsel for the applicant said the following in relation to objective seriousness:

STARES:   In terms of the range suggested for these offences, the Crown and I are not at the page with respect to that. As I understand the Crown suggests that the offences fall at mid-range for both of them. In my submission when your Honour looks at the fact that there is a real lack of aggravating features as in 21(a), having regard to the relevant objective seriousness that has come through from the various authorities and the considerations there. Whilst the complainant was of course in - and I'll talk to the 66A offence first and most serious - it's conceded the complainant was young, certainly she was five years of age and it falls below the ten years of age age group, but in my submission, and of course the offender was much older than her, but your Honour has no degree of coercion, or threats, or pressure in this particular case, which is in my submission an important consideration, or one of the considerations. It's a very short period of time and whilst I agree with the Crown's submissions in the sense that there isn't just a standard hierarchy of penetration of this variety means this, when your Honour puts all of the factual bases in this particular case together, in my submission this falls below mid-range. The only factor that would tend to make it towards mid-range would be her age within the range of that offending within 66A in my submission. [errors as transcribed]

33. In the light of the concession by counsel for the applicant that AU’s age would tend to bring the offending more towards the mid-range of objective seriousness, it is difficult to see how her Honour’s finding that the offending fell just below the mid-range does not constitute an acceptance of counsel’s submission, particularly where the Crown had submitted that the offences fell at the mid-range.

34. I accept the Crown’s submission that when her Honour came to consider the question of objective seriousness she had regard to all of the matters set out at para [30] above. It may be observed in that regard that her Honour’s erroneous reference to bleeding was only part of one of the considerations her Honour addressed. Her Honour, while earlier referring to AU’s age, did not relate that age to the maximum age with which the section is concerned. AU was half of that age, and that was a significant additional matter that justified her Honour’s assessment of objective seriousness.

35. I do not consider that there is any error in her Honour’s assessment of the objective seriousness of the offending. I would reject this ground.

Ground 3:   Error in the weight placed on the stipulated standard non-parole periods

36. In her Remarks on Sentence (ROS), the sentencing judge said this:

The standard non-parole period which operated against the maximum penalty for the aggravated indecent assaults renders it impossible to sentence in accordance with the statutory ratio. Despite my finding on objective seriousness, I cannot strictly comply with the guidance provided by the standard non-parole period if I am to comply with other sentencing principles.

37. The applicant submitted that her Honour’s reference to “strictly comply" with the standard non-parole period reveals faulty reasoning. That is because the High Court determined in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 that the standard non-parole should not be given determinative significance.

38. The applicant submitted that her Honour’s depiction elevated what is a guidepost to the impermissible level of a mandate. The applicant submitted that, where the offending was not within the mid-range of seriousness, the approach that the standard non-parole sets the sentence unless other sentencing principles militate against its "strict compliance” was apt to mislead her Honour into the imposition of a sentence more severe than what was warranted.

39. The Crown drew attention to what her Honour had said at the commencement of her ROS about the curious temporal relationship between the maximum penalty for the offence against s 61M(2) and the standard non-parole period. The Crown submitted that the remarks made by her Honour, now the subject of the applicant’s complaint, do not demonstrate that she elevated the guidepost to a mandate. Rather, they recognise the uncontroversial fact that it is not mathematically feasible to set a head sentence for a s 61M(2) offence that is close to the mid-range while also giving weight to the standard non-parole period.

37. The Crown submitted that the non-parole period imposed for Count 1, which was assessed as being just below the mid-range, was less than half of the standard non-parole period. The Crown submitted that the imposition of such a sentence militated against the submission that her Honour gave undue weight to the standard non-parole period.

Determination

41. When stating the offences, the maximum penalties and the standard non-parole periods at the outset of her ROS, her Honour said in relation to count 1:

The maximum penalty is ten years imprisonment and there is a standard non-parole period of eight years. The curious temporal relationship between these two periods has been considered, as has the need to apply proper consideration to each: AK v R [2016] NSWCCA 238; Corby v R [1220] NSWCCA 146.

42. There can be little doubt that the challenged remarks of her Honour were adverting to this earlier observation. Whilst the use of the word “strictly” was unfortunate, it must be remembered that her Honour’s ROS were delivered ex tempore at the conclusion of the sentence hearing. More importantly, in making the challenged remark, her Honour referred to “the guidance” provided by the standard non-parole period. That is entirely in accordance with what the High Court said in Muldrock. It should also be observed that, as a matter of logic, one cannot “strictly” comply with “guidance”.

43. I also accept the Crown’s submission that a non-parole period of three years and nine months for an offence said to be just below the mid-range, even taking into account factors justifying leniency, is inconsistent with the sentencing judge having given undue weight to the standard non-parole period. In any event, the weight given to any factor is ordinarily the domain of the sentencing judge unless a House v The King error can be demonstrated. In my opinion error is not demonstrated for the reasons given.

44. I would reject this ground.

Ground 4:   Error in failing to recognise the need for prolonged community based rehabilitation, post release.

45. In her ROS, the sentencing judge said:

Submissions were advanced on behalf of the offender that I make a finding of special circumstances. I have factored in the relevant matters when considering the sentence and need to ensure I do not double count any matter. I intend to make a finding based on the need for the overall non-parole period to not exceed the statutory ratio. The period in custody will provide sufficient opportunity to address relevant issues well before his release to the community.

46. The applicant submitted that this finding involved a factual error. The applicant submitted that her Honour’s certitude that the applicant could address his relevant issues before his release to the community prevented her Honour having regard to applicant's disadvantaged background and drug dependency in her assessment of the need or otherwise for prolonged community based rehabilitation. The applicant submitted that her Honour’s finding that adequate access to all necessary rehabilitative services was available in custody was not supported by the evidence and was against the express caution to the opposite effect by the psychologist Ms Wyzenbeek. Ms Wyzenbeek had said that the applicant’s needs were “unlikely to be adequately addressed within a custodial setting".

47. The applicant also submitted that her Honour fell into error in disregarding the causal role that substance addiction had played in the offending. In that regard, the sentencing judge said:

The use of methamphetamine at the time, with its consequent increased libido, increased impulsivity and lessening of inhibitions was speculated as explaining the offending. This cannot be definitively advanced given the offender's stated absence of memory. Ms Wyzenbeek opines that the offender's substance abuse did directly relate to the offending. I do not accept that the evidence, including the offender's hearsay account, establishes this causal connection. I observe that Ms Wyzenbeek indicated another reason the offender failed to give an account of the offending, being due to shame. Even if there was a causal connection, I would not determine it would result in any moderation of the sentence.   (emphasis added)

48. The applicant submitted that the use of the word "definitively" raised a concern that her Honour had applied the wrong standard. The applicant submitted that her Honour should not have rejected the unimpeached expert opinion. The applicant submitted that her Honour’s statement that no moderation of the sentence was called for did not reveal the appropriate chain of reasoning. That chain would be an appraisal of whether there were criminogenic factors in play that necessitated a sentence which recognised and responded to them by way, for example, of prolonged supervision or rehabilitative or specialist courses. The applicant submitted that, at the very least, the applicant’s addiction was a relevant subjective factor.

49. The applicant, while noting that her Honour extended leniency to the applicant in the light of his severe social disadvantage, submitted that the social disadvantage was relevant both to the length and formulation of the appropriate sentence. That should have brought about an increase in the parole period due to the need for prolonged and profound therapeutic and rehabilitative response to his social disadvantage because such services were not available in the custodial setting.

50. The Crown submitted that before a variation is made for special circumstances those circumstances must be sufficiently special. Reference was made to R v Fidow [2004] NSWCCA 172 at [22]. The Crown submitted that a finding of special circumstances is a discretionary finding of fact in respect of which this Court is slow to intervene.

51. The Crown submitted that Ms Wyzenbeek's report indicated that many of the applicant's needs were being managed by Corrective Services and Justice Health, and that there were custodial programs which would assist the applicant with specific issues. The Crown submitted that whilst psychological intervention for depression, anxiety and trauma was unlikely to be addressed adequately in custody, such matters were not unique to the applicant and did not mandate a finding of special circumstances.

52. The Crown submitted that the overall sentence provided a period of four years after the expiration of the non-parole period.

53. In terms of any role played by substance addiction in the applicant's offending, the Crown submitted that Ms Wyzenbeek's ultimate opinion was that the reasons for his offending were unclear, and she hypothesised that there were a number of relevant factors that may have played a part. In that way, the Crown submitted, her Honour was correct to conclude that there was no evidence to establish a definitive causal connection, but this did not mean her Honour did not take the applicant's methamphetamine use into account at all.

54. The Crown submitted that her Honour accepted the applicant's social disadvantage in childhood and associated factors, and noted that those matters were taken into account in determination of the sentence. The Crown submitted, in any event, that the applicant's upbringing, while deprived and difficult, was not at the extreme end of the spectrum that would justify being described as severe, extreme, pervasive or profound.

Determination

55. This ground involves three sub-grounds, each of which will be considered separately.

(a)   Factual error concerning treatment available in custody

56. In her ROS, the sentencing judge said this:

Submissions were advanced on behalf of the offender that I make a finding of special circumstances. I have factored in the relevant matters when considering the sentence and need to ensure I do not double count any matter. I intend to make a finding based on the need for the overall non-parole period to not exceed the statutory ratio. The period in custody will provide sufficient opportunity to address relevant issues well before his release to the community.

57. The psychologist, Ms Wyzenbeek, said this in her report:

[65]   Should a custodial-based sentence be considered appropriate, LB is likely to be assessed by Corrective Services NSW (CSNSW) for suitability to participate in CUBIT. CUBIT is a custody-based, residential therapy program of around 12 to 18 months in duration, for men who have sexually abused adults and/or children. LB's substance use problems can concurrently be met through participation in the CSNSW EQUIPS program for addiction. Unfortunately, LB's additional psychological needs (such as psychological intervention for depression, anxiety and trauma) are unlikely to be adequately addressed within a custodial setting, although participation in the CUBIT program will provide him with better insight into his psychological processes and offer him some basic coping skills to better manage these symptoms. Once released from custody, these needs should be addressed within the community by a suitably trained psychologist.

58. Earlier in her ROS, the sentencing judge made reference to Ms Wyzenbeek's report and what was said there in relation to the applicant’s substance abuse, his depression and Post Traumatic Stress Disorder and his social disadvantage.

59. As noted in Ms Wyzenbeek's report, there were programs available in custody which would deal with his sexual offending specifically and his substance abuse. Whilst it was true that his psychological needs were unlikely to be adequately addressed within a custodial setting, Ms Wyzenbeek noted that his participation in the CUBIT program would provide him with better insight into his psychological processes and offer him some basic coping skills to better manage those symptoms. Ms Wyzenbeek also accepted that once the applicant was released from custody, his psychological needs could be addressed within the community. As the Crown pointed out, the sentence imposed provides a four year period on parole where his psychological needs could be further dealt with.

60. The relevant issues in respect of which the applicant needs assistance, according to Ms Wyzenbeek, are his sexual issues, his substance misuse issues and his psychological needs resulting from depression, anxiety and trauma. The first two of those can be met in custody and, as Ms Wyzenbeek says, dealing with the sexual issues will assist with the psychological issues. Further, Ms Wyzenbeek did not suggest that there was a pressing need to deal with the other psychological issues prior to the time that treatment would be available in the community if he were to be released to parole. It can also be accepted that pharmacological assistance is available for inmates suffering from depression and anxiety at a clinical level.

61. I do not consider that her Honour has made any error in her approach to the treatment that will and will not be available to the applicant whilst in custody.

(b)   The causal role of substance addiction

62. In her ROS, her Honour said:

The use of methamphetamine at the time, with its consequent increased libido, increased impulsivity and lessening of inhibitions was speculated as explaining the offending. This cannot be definitively advanced given the offender's stated absence of memory. Ms Wyzenbeek opines that the offender's substance abuse did directly relate to the offending. I do not accept that the evidence, including the offender's hearsay account, establishes this causal connection. I observe that Ms Wyzenbeek indicated another reason the offender failed to give an account of the offending, being due to shame. Even if there was a causal connection, I would not determine it would result in any moderation of the sentence.

63. In her report, Ms Wyzenbeek said this:

The reasons for his offending are unclear, although it is hypothesised that insecurities and perceived sense of inadequacy may have played a part, as well as some sexual arousal, or in the very least sexual intrigue, in the victims. His use of methamphetamine likely contributed to increases in his sexual drive. Further to this, LB’s use of methamphetamine and fragile mental state likely undermined the internal inhibitors which may have otherwise stopped him from engaging in the offending behaviours.

64. The applicant did not give evidence either at the trial or at the sentence hearing. The evidence of his methamphetamine use around the time of the offending, his lack of memory of the offending and his belief that methamphetamine may have contributed to impairments in his memory were all untested. Her Honour was entitled not to accept a causal connection between his use of methamphetamine and the offending because it was not adequately proved. Her Honour was entitled to give little weight to the untested statements made to Ms Wyzenbeek: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; TS v R [2007] NSWCCA 194 at [30]. I do not consider that her Honour’s assessment of the causal significance of LB’s substance abuse was not open to her.

(c)   The applicant’s disadvantaged background

65. In her ROS, the sentencing judge said this:

I accept that the offender experienced social disadvantage during his childhood, relating to socio-economic reasons, being raised solely by his mother and by identifying as Indigenous. I accept he was bullied both at home and school. He has limited education and has had limited employment. He worked for under two months in one job and for about two years leading up to the offending. He has undertaken courses whilst in custody. This disadvantage is recognised and will be taken into account in the determination of sentence.

66. The difficulty with the sub-ground of the appeal as it is expressed is that it is a complaint, in effect, that insufficient weight has been given to a particular matter. In that way it acknowledges that some weight has been given to the matter. Here, the ground is expressed to be “insufficient response”, but the principle is the same.

67. Her Honour made the references, in the passage set out at [65] above, to the applicant’s social disadvantage and said that it would be taken into account in the determination of the sentence. The extent to which her Honour took it into account is within her Honour’s discretion.

68. The difficulty for the applicant with the whole of this ground of appeal (ground 4) is that a finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. Her Honour referred to the submissions on behalf of the applicant that a finding of special circumstances should be made. Her Honour indicated that she factored the relevant matters into her sentence and needed to be careful about double counting. Each of the issues raised by this ground of appeal was dealt with by her Honour in her ROS.

69. In fact her Honour reduced the statutory ratio for the overall sentence by reducing the non-parole period from nine years and nine months to nine years. Counsel for the applicant accepted that there had been a finding of special circumstances in that regard but submitted that the reduction should have been greater than nine months. That submission only highlights the difficulty of challenging a discretionary decision such as a finding of special circumstances.

70. No error is shown in relation to Her Honour’s treatment of those matters. I would reject this ground of appeal.

Ground 5:   The sentences are manifestly excessive

Submissions

71. Although the applicant’s written submissions made a conclusion on this ground of appeal dependent on the finding of error in one or more of grounds 1-4, counsel for the applicant made clear at the hearing that the ground relied on a finding that the sentences were plainly unreasonable and unjust, independently of error being found. However, no further submissions were made to justify the assertion that the sentences were plainly unreasonable and unjust. Neither statistics nor comparative cases were put forward in support of the submission of manifest excess. The implied suggestion must be that the Court would examine the sentences and, by reason of the experience of the Court’s members, reach a view about manifest excess. That is an entirely unsatisfactory procedure. The Court reaches a decision on issues and grounds of appeal assisted by submission from the parties. I note also that it does not appear that her Honour was given any assistance in terms of cases or statistics at the sentence hearing.

72. It may be accepted that the overall sentence is a stern one. It is, nevertheless, necessary to examine each of the individual sentences.

73. While the head sentence for Count 1 is half the maximum sentence (and complaint was made about that with respect to ground 2 because of the finding of objective seriousness), it is clear from her Honour’s remarks concerning the peculiar relationship between the maximum sentence and the standard non-parole period, that her Honour was trying to achieve a balance between those two guideposts whilst endeavouring also to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The result is that the non-parole period is less than half of the standard non-parole period, indicating that considerable leniency has been shown when the findings of objective seriousness and the other mitigating factors are taken into account.

74. The sentence for Count 2 is certainly not a lenient one. However, a number of factors suggest that the sentence cannot be said to be manifestly excessive. First, the maximum penalty for the offence is life imprisonment. That maximum penalty was recently increased by Parliament, indicating the seriousness with which the courts must recognise and deal with such offending. Secondly, the non-parole period imposed was only a little over half of the standard non-parole period where the applicant was found guilty after a trial. Thirdly, the complainant was aged only 5 years where the offence is concerned with children under ten years. The offence involved a breach of trust by reason of the relationship of the applicant to the complainant. Fourthly, given the offending against HU at an earlier time, this offending was not aberrant. Fifthly, her Honour found no remorse and did not find favourable prospects of rehabilitation. Sixthly, the offence was committed in breach of an ADVO, the matter dealt with on the s 166 Certificate.

75. Unassisted by further material, the matters set out above do not lead me to the conclusion that the sentence imposed for Count 2 was plainly unreasonable or unjust.

76. As to the overall sentence, it should be noted that there is a significant amount of concurrency between the two individual sentences, with each of the non-parole period and the overall sentence for Count 2 being accumulated by only 12 months for the offending in Count 1, despite a different complainant being involved and the time of the offending being separated by some six months.

77. I would reject this ground of appeal.

Conclusion

78. I propose the following orders:

1. Extend time for the filing of the Notice of Appeal to 25 January 2019.

2. Grant leave to appeal.

3. Dismiss the appeal.

79. BUTTON J:   I agree with Davies J.

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Decision last updated: 12 July 2019