Maxwell v R

[2020] NSWCCA 94

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Maxwell v R [2020] NSWCCA 94
Hearing dates:	20 April 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Before:	Johnson J at [1] Adamson J at [149] Bellew J at [150]
Decision:	1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:	APPEAL – sentence – child sex offences – applicant sexually abused his daughter – 17 offences over nine-year period – aggregate sentence of imprisonment of 14 years with a non-parole period of 10 years and six months – conceded error in specification of standard non-parole periods – Court to exercise sentencing discretion to determine whether lesser sentence warranted – objective gravity of offences – victim aged between five and 15 years during period of offending – lesser sentence not warranted – appeal dismissed
Legislation Cited:	Courts Legislation Amendment (Broadcasting Judgments) Act 2014 Crimes (Sentencing Procedure) Amendment Act 2007 Crimes Act 1900 Crimes Legislation Amendment (Child Sexual Offences) Act 2015 Criminal Appeal Act 1912 District Court Act 1973 Supreme Court Act 1970 Surveillance Devices Act 2007
Cases Cited:	Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 BT v R [2010] NSWCCA 267 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Chin-Charles v R; Cullen v R [2020] 1 Cr App R (S) 6; [2019] EWCA Crim 1140 Corby v R [2010] NSWCCA 146 DAC v R [2006] NSWCCA 265 Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 He v R [2016] NSWCCA 220 House v The King (1936) 55 CLR 499; [1936] HCA 40 You v R [2020] NSWCCA 71 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 Potts v R [2017] NSWCCA 10 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Hamieh [2010] NSWCCA 189 R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Mirzaee [2004] NSWCCA 315 R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 R v Pham [2005] NSWCCA 94 R v Qin [2008] NSWCCA 189 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Van Ryn [2016] NSWCCA 1 R v Van Ryn (No. 3) [2016] NSWCCA 307 RO v R [2019] NSWCCA 183 Vaughan v R [2020] NSWCCA 3 ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132
Texts Cited:	---
Category:	Principal judgment
Parties:	George Maxwell (a pseudonym) (Applicant) Regina (Respondent)
Representation:	Counsel: Ms J Paingakulam (Applicant) Ms M Millward (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/335467
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 2 August 2019 Before: His Honour Judge Whitford SC File Number(s): 2017/335467

Judgment

1. JOHNSON J: By Notice of Application for Leave to Appeal filed on 19 December 2019, the Applicant seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Sydney District Court on 2 August 2019 for a number of child sex offences.

2. A pseudonym is used to describe the Applicant as publication of his name would serve to identify his daughter, the victim of his offences. She is entitled to protection against identification as a victim of the offences: s.578A Crimes Act 1900.

The Offences and Aggregate Sentence

3. Following pleas of guilty, the Applicant was sentenced by his Honour Judge Whitford SC on 2 August 2019 to an aggregate term of imprisonment for 14 years with a non-parole period of 10 years and six months commencing on 6 November 2017 and expiring on 5 May 2028 and a balance of term of three years and six months commencing on 6 May 2028 and expiring on 5 November 2031.

4. The sentencing Judge nominated an indicative sentence for each of the 17 offences which gave rise to the aggregate sentence.

5. The counts, offences, maximum penalties and standard non-parole periods (if any), together with the indicative sentences nominated by the sentencing Judge, are set out in the following table:

Count	Offence	Maximum Penalty and SNPP	Indicative Sentence - Imprisonment for
1 (Sequence 9)	Between 20 April 2005 and 2 July 2007 (Victim 4-6 years old): Indecent assault person aged under 10 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: five years	One year and six months NPP: one year and one month
2 (Sequences 10 and 11)	Between 2 July 2007 and 8 August 2009 (Victim 6-8 years old) Indecent assault person aged under 10 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: five years	Two years NPP: one year and six months
3 (Sequence 22)	Between 1 January 2008 and 31 December 2008 (Victim 7-8 years old) Indecent assault person aged under 10 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Two years and three months NPP: one year and eight months
4 (Sequence 14)	Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	One year and six months NPP: one year and one month
5 (Sequence 15)	Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	One year and six months NPP: one year and one month
6 (Sequence 16)	Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) Indecent assault person aged under 16 years Section 61 M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	One year and six months NPP: one year and one month
7 (Sequence 17)	Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Two years NPP: one year and six months
8 (Sequence 7)	Between 26 January 2013 and 27 January 2013 2015 (Victim 12 years old) Aggravated act of indecency with person aged under 16 years (under authority) Section 61O(1) Crimes Act 1900	Five years’ imprisonment No SNPP	Two years
9 (Sequence 2)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated act of indecency with person aged under 16 years (under authority) Section 61O(1) Crimes Act 1900	Five years’ imprisonment No SNPP	One year
10 (Sequence 3)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated indecent assault (under authority) Section 61M(1) Crimes Act 1900	Seven years’ imprisonment SNPP: five years	One year NPP: nine months
11 (Sequence 4)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated act of indecency with person aged under 16 years (under authority) Section 61O(1) Crimes Act 1900	Five years’ imprisonment No SNPP	Two years
12 (Sequence 8)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated sexual intercourse with person above 14 years and under 16 years (under authority) Section 66C(4) Crimes Act 1900	12 years’ imprisonment No SNPP	Five years and three months NPP: Three years and 11 months
13 (Sequence 6)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated act of indecency with person aged under 16 years (under authority) Section 61O(1) Crimes Act 1900	Five years’ imprisonment No SNPP	Two years
14 (Sequence 18)	Between 1 January 2012 and 31 December 2012 (Victim approximately 12 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	One year and one month NPP: 10 months
15 (Sequence 19)	Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Two years and three months NPP: One year and eight months
16 (Sequence 24)	Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) Attempt indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment	One year and six months NPP: one year and one month
17 (Sequence 21)	Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	One year NPP: nine months

6. As will be seen, the issues raised on the present application concern the standard non-parole periods which were said to apply to three of the 17 offences. The table set out above contains accurate information concerning the standard non-parole periods which applied to particular offences.

Ground of Appeal

7. The sole ground of appeal relied upon by the Applicant is that the sentencing Judge erred in applying a non-existent standard non-parole period to the aggravated sexual intercourse offence (Offence 12).

8. It was common ground before this Court that the sentencing Judge attributed a standard non-parole period of five years for Offence 12 in circumstances where there was not a standard non-parole period for that class of offence in the period March-May 2015 (when the offence occurred). A standard non-parole period was not introduced for an offence under s.66C(4) Crimes Act 1900 until the Crimes Legislation Amendment (Child Sexual Offences) Act 2015 came into force on 29 June 2015, setting a standard non-parole period of five years for offences under that provision.

9. This Court was told that the sentencing Judge had been misinformed on that aspect by information contained in the Crown Sentence Summary used in the District Court.

10. The Crown written submissions in this Court identified two further errors with respect to standard non-parole periods referred to by the sentencing Judge.

11. Firstly, the Crown noted that a standard non-parole period did not operate with respect to Offence 16, an offence of attempted indecent assault on a person aged under 16 years contrary to s.61M(2) Crimes Act 1900. Contrary to the assertion contained in the Crown Sentence Summary, the standard non-parole period did not apply to attempts to commit substantive offences which carry standard non-parole periods so that there was no standard non-parole period for Offence 16: DAC v R [2006] NSWCCA 265 at [9]-[10].

12. Secondly, the Crown noted that the sentencing Judge had stated incorrectly the standard non-parole period for Offence 3, an offence of indecent assault on a child under 10 years of age contrary to s.61M(2) Crimes Act 1900. The sentencing Judge stated that the maximum penalty for s.61M(2) offences was 10 years’ imprisonment with a standard non-parole period of five years. This was accurate with respect to Offences 1 and 2, being earlier s.61M(2) offences committed by the Applicant. However, the Crown noted that, by the time Offence 3 was committed, although the maximum penalty remained 10 years’ imprisonment, the standard non-parole period had been increased to eight years by the Crimes (Sentencing Procedure) Amendment Act 2007, which commenced on 1 January 2008. The Crown Sentence Summary had stated accurately the standard non-parole period for Offence 3, but it appears that his Honour overlooked this aspect.

13. As a consequence of these errors, the Crown conceded that error had been demonstrated. Whilst it remains a matter for the Court, the Crown accepted that the Court should move to exercise its independent sentencing discretion for the purpose of determining whether a lesser aggregate sentence should be imposed under s.6(3) Criminal Appeal Act 1912: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

Facts of Offences

14. A Statement of Agreed Facts signed by the Applicant was tendered in the District Court.

15. The Applicant was born in July 1973. The victim was born in September 2000. She is the only child of the relationship between the Applicant and the victim’s mother which commenced in 1999.

16. The offences span the period 2005-2015. During that period, the victim lived with the Applicant and her mother at various locations in south-western Sydney. Each of the offences took place in the home shared by the victim and the Applicant.

Offences 1 to 3 Committed Between 2005 and 2009 - Section 61M(2) Offences

17. Offence 1 occurred between 20 April 2005 and 2 July 2007 at the family home in south-western Sydney when the Applicant was aged between 31 and 33 years and the victim was between four and six years of age.

18. An inflatable pool had been set up in the backyard of the property. One morning, the Applicant woke the victim and told her to change into her swimming costume and get into the pool. He had the victim sitting in his lap while he was leaning against the side of the pool. The Applicant touched the victim on the chest and then on her vagina on the outside of her swimsuit. He rubbed the victim's vagina with his fingers for about 30 seconds.

19. Offence 2 occurred between 2 July 2007 and 8 August 2009 when the victim was between six and eight years of age. Based on the different address where they were living when the offence occurred, the victim believed the offence took place when she was "likely closer to, or had turned, 8".

20. At this time, the relationship between the Applicant and the victim’s mother had become very strained due to the Applicant’s unemployment, excessive drinking and aggressive behaviour. The victim would sometimes sleep with her mother in her mother’s double bed. On this occasion, the victim had slept in her mother's double bed, something she did on occasions if the Applicant was away or was staying up for the night. The victim woke up to find her hand inside the Applicant's pants on his penis. The victim was startled and realised that her mother was not there and must have gone to work. When she tried to move her hand away, the Applicant grabbed it, forcing her to keep hold of his penis. He then moved the victim's hand up and down on his penis, making her masturbate him. The victim started crying. The Applicant responded angrily, yelling at her "Go tell someone! When you tell someone I'm going to get in trouble for it". Not wanting her father to get in trouble, the victim did not tell anyone at the time.

21. In the months after Offence 2, the Applicant's abuse of the victim escalated, and he began interfering with her when she showered.

22. Offence 3 was one such occasion. It occurred some time between 1 January 2008 and 31 December 2008, when the victim was seven or eight years of age. The victim was showering. The Applicant got into the shower with her. He was naked. He began washing her body with a bar of soap. When he got to her vagina, he washed it for an inordinately long time. He rubbed the outside and near the entrance of the victim's vagina for a lengthy period of time. The Applicant also made the victim masturbate his penis. The Applicant told the victim that if she told anyone, he would get in trouble.

Offences 4 to 7 Committed on a Day Between 2009 and 2013 - Further Section 61M(2) Offences

23. Offences 4 to 7 occurred one afternoon between 8 August 2009 and 31 December 2013 when the victim was aged between eight and 13 years.

24. The victim was watching television in the lounge room whilst her mother had an afternoon nap. The Applicant grabbed the victim's arm and pulled her to the bathroom. He locked the door, pulled down his pants and placed the victim's hand on his penis. The victim resisted and tried to pull her hand away. The Applicant grabbed her hand and again put it on his penis, which was erect.

25. While she masturbated his penis (Offence 4), the Applicant kissed the victim on the mouth and neck, putting his tongue into her mouth. The Applicant also touched the victim's breasts (Offence 5) and rubbed her vagina (Offence 6).

26. The victim tried to push the Applicant's hand away from her vagina, but he was too strong. The Applicant sat on the toilet and made the victim sit on top of him. He pushed the victim towards his penis, rubbing it on and against her vagina on the outside of her clothing (Offence 7).

Offence 8 - A Further Offence in 2013 - Section 61O(1) Offence

27. Offence 8 occurred on the afternoon of 26 or 27 January 2013. The victim was 12 years old. It was the Australia Day long weekend.

28. The Applicant and the victim were sleeping in a tent in their backyard. Each slept on their own mattress. The victim’s mother had planned on sleeping in the tent as well, but she changed her mind and decided to sleep in the house.

29. During the night, the Applicant woke the victim by moving off his mattress and lying next to her. He took her hand and put it on his penis, holding it there while she masturbated him. The victim kept trying to pull her hand away, causing the Applicant to hold her hand on his penis. The Applicant ejaculated and fell asleep.

Offences 15 to 17 Committed Between 2011 and 2013 - Further Section 61M(2) Offences

30. Offence 15 occurred one Saturday morning between 1 January 2011 and 31 December 2013, after the victim's mother had gone to work. The victim was between 10 and 13 years old. She started receiving text messages on her mobile phone from the Applicant who was downstairs drinking. The victim did not answer the text messages and pretended to be asleep. The Applicant went upstairs and entered the bedroom. He lay down next to the victim, pulled his pants down and made the victim masturbate him by grabbing her hand and putting it on his penis. The victim masturbated the Applicant until he ejaculated.

31. Offence 16 occurred on another occasion during the same period between 1 January 2011 and 31 December 2013. The Applicant entered the victim's bedroom when she was alone and undressed her. He touched her body all over and rubbed the outside of her vagina. He grabbed the victim's head and pushed it toward his penis. The victim resisted and pulled her head away. The Applicant grabbed the victim's breasts and buttocks and kissed her breasts. He tried to perform cunnilingus on her, but she pushed him away.

32. Offence 17 took place during the same period as Offences 15 and 16. It occurred during one of the Applicant's long drinking sessions, after the victim's mother had gone to work. He approached the victim in the lounge room and tried to kiss her. She kept her mouth shut and would not kiss him. The Applicant persisted and kissed her closed mouth while telling her that she was “hot” and had a “hot body” and that she should get changed into her bikini.

Offence 14 Committed in 2012 - A Further s.61M(2) Offence

33. Offence 14 occurred one night between 1 January 2012 and 31 December 2012. The victim was about 12 years old. During periods of hot weather, the victim would often sleep on a mattress on the floor of her parents' room as that was the only room in the house with air conditioning.

34. One night during her last year of primary school, she was sleeping on the spare mattress. The Applicant reached down and touched her chest and her vagina and then used his fingers to rub the victim's vagina on the outside of her clothing (Offence 14). He tried to put his hands inside her pants, but the victim moved so he could not.

Offences 9 to 13 Committed in April 2015 - Offences Under Sections 61M(1), 61O(1) and 66C(4) Crimes Act 1900

35. Offences 9 to 13 occurred on a Saturday morning in April 2015 when the victim was 14 years old. The victim was using the shower in her mother's en suite while her mother was at work. She locked the door to the adjoining bedroom because she feared the Applicant, whom she knew had been drinking, would "do it again". The Applicant banged on the door, yelling "Why'd you lock it?". The victim left the shower and unlocked the door before returning to the shower and pulling the shower door closed.

35. The Applicant tried to open the shower door, but the victim held it shut. Eventually, the Applicant succeeded in opening the door because he was stronger. He stood outside the shower and masturbated himself while looking at the victim (Offence 9). The victim was crying. The Applicant said, "Just pretend I'm not here”.

36. While the victim was still standing in the shower, the Applicant squeezed one of her breasts and said, "You have a good bum. You have good boobs" (Offence 10). He turned the water off and told her to get out of the shower.

37. The Applicant walked into the bedroom and lay naked on the bed on his back. He told the victim to get out of the bathroom and come to him. She was still naked and had taken her time drying off in the bathroom because she was scared. The victim walked to the Applicant. He grabbed her hand and held it on his erect penis and she masturbated him (Offence 11).

38. While she did so, the Applicant inserted his fingers into the victim's vagina and rubbed the inside of her vagina while also touching her breasts (Offence 12). Eventually, he fell asleep.

39. The victim then lay completely still for about 30 minutes because she was scared the Applicant would wake if she got up. When she did try to move, the Applicant woke up and made the victim masturbate him again until he ejaculated (Offence 13). The Applicant became angry when the victim said she wanted to leave.

The Victim Tells her Mother About the Offences

41. In May 2017, the victim told her mother about the assaults. In September 2017, the victim told a teacher at school and the matter was reported to police.

The Police Investigation of the Offences

42. On 28 September 2017, the victim provided a statement to police detailing numerous instances of abuse over a nine-year period when she was aged six to 14 years old. The victim said the abuse became so normalised that it was difficult for her to specify dates that it occurred.

43. On 12 October 2017, police obtained a warrant under the Surveillance Devices Act 2007. On 13 October 2017, conversations between the victim and the Applicant were lawfully recorded.

44. During the conversations, the victim talked about “rape”. The Applicant asked the victim not to talk about it over the phone because “The police could be tapping your phone”. The victim said “But it was heaps long ago. The last one was two years, maybe three”. The Applicant replied “Five. Let’s not talk about that over the phone”. The Applicant then asked the victim “It didn’t happen did it?” and the victim replied “It did Dad, but I’m not going to tell anyone”.

45. The Applicant said “It’s hard for me to speak to you on the phone about it because I don’t know what’s going on. Police and shit”. The victim said “Why?” and the Applicant said “Because they fucking could be bugging us”. The victim and the Applicant started talking about “rape”. The Applicant said “15, 20 years I’d get, straight off the bat”. The victim replied “But they would have no evidence”. The Applicant said “Well they’d get you up”.

46. During the recorded conversation, the Applicant repeatedly urged the victim to make up a story to tell police and repeatedly asked her if she had already told the police. He said “Or have you told them, [victim’s name], so that I’ll get going?”. At another point during the conversation, the victim asked the Applicant “How many times do you think it happened?” and the Applicant replied “I don’t know, I really don’t”. He continued “It looks like I’m going to be spending a time in fucking gaol, that’s all”.

47. The victim asked “But why did you do it?”. The Applicant responded “It was pretty well mutual, [victim’s name]. We were both just stuffing around with each other. It wasn’t anything serious darling was it? You probably can’t remember”. The victim replied “I can only remember like the one in the like when you were drunk and then I was in the shower and then you were knocking at the door and you made me like masturbate you and all that. That’s the only one I clearly remember”. The Applicant responded “That’s fucked up. Go to the police, [victim’s name]”.

The Applicant is Arrested and Charged

48. At 8.45 am on 6 November 2017, police attended the home of the Applicant’s parents in southern Sydney. The Applicant was arrested and cautioned with respect to these matters. He was taken to a police station and an electronically recorded interview took place in which the Applicant denied all allegations.

49. The Applicant was charged and refused bail. He remained in continuous custody from 6 November 2017.

The Applicant’s Subjective Circumstances

50. The Applicant was born in July 1973. He was 31 to 33 years old at the start of the nine-year period over which he committed the index offences and was 45 years old at the time of sentence.

51. The Applicant has a record of prior convictions dating from 1990 including convictions for common assault in 1994 (two counts), 1996 and 1999. In 2008, he received suspended sentences for offences of common assault (two counts), stalk/intimidate and contravene prohibition/restriction in an apprehended domestic violence order.

52. In 2009, he was sentenced for a further count of common assault (domestic violence). The suspended sentence imposed for that offence was called up in 2010 and a sentence of periodic detention was imposed.

53. Offence 3 (see [22] above) was committed whilst the Applicant was subject to conditional liberty in 2008 in the form of either bail or a suspended sentence for a domestic violence offence committed against the victim's mother.

54. The Applicant was sentenced to a term of imprisonment for common assault (domestic violence) in 2016. He served six days of that sentence before it was varied on appeal to a suspended sentence.

55. The sentencing Judge for the present offences found that the prior convictions of the Applicant denied him leniency.

56. The Applicant did not give evidence at the sentencing hearing.

57. A letter dated 11 July 2019 from the Applicant’s father was tendered in the defence case.

58. Tendered in the defence case on sentence was a report dated 8 July 2019 of Dr Andrew Ellis, forensic psychiatrist. Dr Ellis gave brief oral evidence at the sentencing hearing, to which reference will be made below.

59. The Applicant was born in New Zealand and came to Australia with his family as a young child in 1974. He attended school until the age of 15. The Applicant told Dr Ellis that he was a below-average student and required special schooling for learning difficulties. He completed his schooling at a private school where he had no significant disciplinary problems. After leaving school, the Applicant worked as an apprentice chef for three years. He did not complete the apprenticeship, but is a Grade 2 cook and has been employed in that role.

60. The Applicant has a long history of drug and alcohol abuse. He began drinking alcohol at age 17 and reported that, from the age of 19, he would drink at least six beers a day and "as many bourbons as I could drink". He estimated that he experienced blackouts two-to-three times a week.

61. The Applicant began smoking cannabis at age 16 and used heroin from age 20, including daily intravenous use from age 22. He last used heroin 15 years ago (in about 2004). The Applicant reported having used “Ice” (crystal methylamphetamine) and “speed” (methylamphetamine) from age 17 and that he used it initially once a year. His use increased to a few times a year and in the year before his arrest, he was using half a gram a fortnight.

62. The Applicant told Dr Ellis that he had attended drug or alcohol rehabilitation on three or four occasions, but had always walked out before finishing the program.

63. The Applicant told Dr Ellis that he had a problem with his mood since he was 19 years old. At that age, the Applicant reported having been drugged and raped by two males. He told Dr Ellis that he saw a psychologist for three years in relation to the incident and that, as a result of it, he hates being surrounded by men.

64. Dr Ellis opined that the Applicant presented with a substance abuse disorder that was in remission within a controlled environment. He noted that the Applicant described mood and anxiety symptoms following the sexual assault. Dr Ellis observed that the most likely diagnosis was that of post-traumatic stress disorder and noted that some of the Applicant's mood symptoms may have been exacerbated by heavy substance abuse.

65. Dr Ellis reported that, given the persistence of the offending behaviour, it is likely that the Applicant would meet the criteria for a paedophilia disorder, limited to incest and attraction to females. He noted that the Applicant had denied any sexual arousal, fantasy urge or behaviour with children other than his daughter.

66. Dr Ellis said in evidence during the sentence proceedings that there was no way for him to tell if those denials were true in the absence of external evidence to the contrary. Dr Ellis gave evidence that if the Applicant only offended against his daughter, then he is at a lower risk of reoffending than people who have offended against males and people who have offended against females who were not their biological relatives.

67. Dr Ellis stated that in his opinion, sexual arousal was the primary motive for the Applicant’s offending. He confirmed that aspect of his opinion in oral evidence, but said he thought there were "probably some other motives" including that the Applicant was seeking a replacement relationship. He noted that threats and psychological coercion (telling the child he would get into trouble if the child tells) were used by the Applicant for some of the offences.

68. Dr Ellis gave evidence that the Applicant did not minimise his behaviour in that he did not disagree with the contents of the facts sheet or minimise the detrimental effects that his behaviour would have had on his daughter. He stated that the Applicant displayed limited insight into the motivations for his offending behaviour later adding, in cross-examination, that this was not surprising given that he had not received targeted psychological treatment for sexual offending following the offences.

69. Dr Ellis recommended that the Applicant undergo substance abuse rehabilitation and stated that it was likely that the Applicant would benefit from cognitive behavioural programs aimed at sexual offending and domestic violence, as well as anti-androgen medication to reduce his sex drive once he was released into the community.

Victim Impact Statement

70. A powerful victim impact statement was tendered by the Crown at the sentencing hearing. At the time of the sentencing hearing in July 2019, the victim was 19 years old.

71. In this statement, the victim recounted the impact upon her of the protracted period of sexual offending against her by her father over a period of nearly 10 years when she was aged between five and 14 years. She stated that the Applicant had told her that his pattern of sexual abuse upon his young daughter was normal.

72. The victim recounted the serious adverse consequences upon her health and mental wellbeing as she moved into her teenage years being fearful of what would happen to her (by way of sexual abuse) and her mother (by way of physical abuse) at the hands of the Applicant.

73. The victim recounted the adverse effects of the Applicant’s offences upon her education and in other ways affecting all aspects of her life.

74. Fortunately, the victim has found support through her religious beliefs. However, it is clear from the victim impact statement that there are lifelong adverse consequences for this young woman.

75. The victim impact statement provides graphic and tangible support for the serious harm resulting to victims of child sex offences. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”

76. The adverse effects referred to in R v Gavel are especially severe and deep seated in a case such as this where a young girl was sexually abused by her own father for almost a decade: Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [57].

The Sole Ground of Appeal - Error in Application of a Non-Existent Standard Non-Parole Period for the Aggravated Sexual Intercourse Offence (Offence 12)

77. Ms Paingakulam, counsel for the Applicant, submitted that error had been demonstrated in this case by his Honour’s reference to a standard non-parole period with respect to Offence 12 which, at the relevant time of offending, did not have a standard non-parole period attaching to it.

78. Counsel for the Applicant relied as well upon the similar error affecting Offence 16 (see [11] above). Whilst noting the error raised by the Crown concerning Offence 3 (see [12] above), which it was submitted was less clear cut, Ms Paingakulam accepted that the correct standard non-parole period would, in any event, need to be considered on resentence for Offence 3.

79. As noted earlier, the Crown acknowledged that error had been demonstrated by the sentencing Judge’s reliance upon non-existent standard non-parole periods.

80. In Potts v R [2017] NSWCCA 10, this Court said at [40]:

“…, in other cases in which a sentencing judge has erroneously referred to a standard non-parole period that, in truth, did not apply, this Court has adopted a cautious approach by accepting that error has been established, and moving to re-sentence: see BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 (erroneous reference to standard non-parole period when sentencing a juvenile offender); and McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48 (erroneous reference to standard non-parole period that had been introduced after the date of the commission of the offences).”

81. I am satisfied that error has been demonstrated in this case. By having regard to non-existent or erroneous standard non-parole periods with respect to three of the 17 offences, his Honour has had regard to an irrelevant consideration so as to constitute error in accordance with the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. A standard non-parole period is a legislative guidepost which a sentencing court is required to take into account on sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

82. It is regrettable that the Crown Sentence Summary was erroneous in two respects (concerning Offences 12 and 16). In addition, his Honour misstated the relevant standard non-parole period for Offence 3 which was described accurately in the Crown Sentence Summary.

83. A consequence of these errors is that the Court should move to exercise its independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed: s.6(3) Criminal Appeal Act 1912; Kentwell v The Queen at [43].

Resentencing the Applicant

84. In exercising its function under s.6(3) Criminal Appeal Act 1912, the Court should take into account all relevant matters, including any evidence of the Applicant’s progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

Additional Evidence

85. On resentencing, reliance is placed upon the affidavit of the Applicant affirmed 8 April 2020. In this affidavit, the Applicant (who is now 46 years old) recites his custodial history since his arrest on 6 November 2017. He has undertaken work in different capacities in correctional centres.

86. The Applicant states in the affidavit that he has completed a number of courses which have ceased for the time being because of the COVID-19 pandemic. The Applicant has asked to undertake the EQUIPS Foundation and Aggression courses and is waiting to commence those courses. The Applicant has informed correctional staff that he is prepared to undertake the Custody-Based Intensive Treatment (CUBIT) program and has been told that this program will not be available to him until later in his sentence.

87. The Applicant states that he has family support from his parents, two brothers and a sister who have visited him from time to time, but that family visits are not allowed for the time being because of the COVID-19 pandemic. The Applicant speaks to his parents by telephone daily and to his siblings less frequently.

88. The Applicant states that he is experiencing stress and anxiety because of the COVID-19 pandemic and is experiencing more restrictive conditions within the regional correctional centre in which he is presently housed as a result of that state of affairs.

89. The Applicant does not have any history of disciplinary offences within correctional centres.

90. The Applicant stated in his affidavit that he understands and admits “that what I have done is wrong” and that he has started to take steps to address his alcohol and drug issues through courses.

91. The Applicant stated that he is facing deportation to New Zealand at the end of his sentence. He understands that this is a consequence of his offences, but states that deportation to New Zealand “is going to be hard, because I don’t have any family over there”. He stated that he finds it “very distressing that I will have to leave, but it’s something that I will have to deal with”.

Submissions on Resentencing

92. Ms Paingakulam accepted that it was open to the Court to revisit the indicative sentences for all offences even though relevant error related to three offences only. This acknowledgement flowed from the fact that the appeal is directed to the aggregate sentence and not the indicative sentences.

93. It was submitted, however, that the indicative sentence for Offence 12 should be less than that nominated by the sentencing Judge given the direct impact of the standard non-parole period erroneously taken into account for that offence.

94. Beyond that, it was submitted that the Court should determine that the indicative sentences for other offences would remain as stated by the sentencing Judge.

95. Counsel for the Applicant submitted that the Court should reduce the notional accumulation as between the various offences having regard to the principles in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]-[29]. Counsel pointed to the fact that a number of the offences occurred as part of a course of conduct on a single day so that significant notional concurrency was appropriate for those offences.

96. Counsel submitted that the present offences involved a single victim so that the totality principle was to be applied in a context different to a sex offender who has committed offences against several victims: R v Van Ryn [2016] NSWCCA 1; R v Van Ryn (No. 3) [2016] NSWCCA 307.

97. It was submitted that a finding of special circumstances should be made by reference to the Applicant’s likely deportation which serves to make his custodial experience more anxious and onerous.

98. The Crown submitted that it is appropriate for the Court to assess the indicative sentences to be nominated for each offence in a manner which would warrant higher indicative sentences being specified for the offences. It was submitted that this course was appropriate to emphasise the grave breach of trust involved in a sustained period of conduct by the Applicant towards his own daughter over a period of years.

92. The Crown submitted that the Applicant’s remorse had only manifested itself in the context of his discussions with Dr Ellis in 2019, against the background of earlier denials on his part and minimisation of his offending including an assertion in the recorded conversation in 2017 that what had occurred was, in some way, consensual.

93. The Crown submitted that any stress arising from the prospect of deportation did not constitute, either on its own or in conjunction with any other factors, an adequate basis for a finding of special circumstances.

94. The Crown submitted that the number of offences committed over a lengthy period of time against the Applicant’s daughter was such that application of the totality principle ought lead to a substantial term of imprisonment so that the Court would conclude that no lesser aggregate sentence was warranted in the circumstances of the case so that the appeal should be dismissed.

Decision

102. The error established in this case relates to three of the 17 offences which were the subject of an aggregate sentence of imprisonment. The only operative sentence imposed by his Honour was the aggregate sentence. In accordance with the statutory scheme, his Honour was required to indicate sentences for the purpose of understanding the components of the aggregate sentence in general terms. However, the indicative sentences have no practical operation at all: Vaughan v R [2020] NSWCCA 3 at [90].

103. The indicative sentences are not themselves amenable to appeal, although they may be a guide as to whether error is established in the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40](11).

104. In the present case, express error is demonstrated with respect to three of the indicative sentences in a manner which leads to a conclusion that error is established in the aggregate sentence.

105. The approach to be adopted by this Court, in exercising its function under s.6(3) Criminal Appeal Act 1912, has been considered in a number of decisions. In RO v R [2019] NSWCCA 183, Beech-Jones J (Bathurst CJ agreeing; N Adams J agreeing in additional reasons) considered the authorities and said at [87]-[89]:

“87   Consistent with this, it is common in this Court in cases where s 6(3) is invoked to dismiss an appeal against sentence not to specify the more severe sentence that was warranted in law (see for example Porter v R [2019] NSWCCA 117 at [92] (R A Hulme J); Stavropoulos v R [2018] NSWCCA 12 at [31] (Hoeben CJ at CL); Nye v R [2018] NSWCCA 244 at [83] (Button J); Gilmour v R [2018] NSWCCA 295 at [82] (Johnson J); Clinton v R [2018] NSWCCA 66 at [53]‑[55] (Schmidt J)).

88   However, in Turnbull at [57] to [63], Simpson AJA applied s 6(3) by specifying the sentences that her Honour would have imposed if exercising the sentencing discretion afresh, which were higher than those imposed by the sentencing judge, before dismissing the appeal. Her Honour did not refer to Gal or explain why it was necessary to specify the sentence that would have been imposed.

89   The end result is that the approach of this Court to re‑sentencing is to be undertaken in a manner consistent with what is stated in Turnbull above (at [81]), ie, by putting aside the sentence imposed at first instance. In undertaking that exercise, if the Court concludes that a greater sentence is warranted then it is not obliged to specify what the sentence was but may instead simply dismiss the appeal (Gal; O’Grady) although it may decide to specify the sentence that was warranted (Turnbull). For my part, in light of the observations in Gal, I consider that the Court should only take the latter course if some particular circumstance warrants it. One possible such circumstance appears to follow from the emphasised statement in the above passage from Kentwell, namely where the Court is considering the application of s 6(3) to an aggregate sentence. That passage appears to contemplate that, at least in some cases, the Court may need to identify the particular indicative sentence that is warranted for each offence prior to the Court forming a conclusion about whether an aggregate sentence that it considers is warranted in law is more (or less) severe than the aggregate sentence the subject of the appeal.”

106. In accordance with what was said in RO v R at [89], in a case such as the present one, the Court:

1. should put aside the sentence imposed at first instance;

2. should identify the particular indicative sentences which are warranted for each of the offences;

3. should then form a conclusion about whether the aggregate sentence that is warranted in law is more (or less) severe than the aggregate sentence which is the subject of the appeal;

4. need not announce the aggregate sentence if the aggregate sentence which is warranted in law is more severe - the Court can state that a less severe aggregate sentence is not warranted in law and then proceed to dismiss the appeal;

5. should, only if the Court determines that a less severe aggregate sentence is warranted in law, proceed to state the new aggregate sentence and then resentence the Applicant accordingly.

107. The Court should state the indicative sentences to be nominated for all 17 offences as part of the process of determining whether a lesser aggregate sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912. This course is particularly appropriate in the present case as the Crown contends that higher indicative sentences should be nominated than those stated in the District Court.

108. The sentencing Judge in this case found that each of the offences, with the possible exception of Offence 17, was a very serious example of its kind. Those conclusions were not challenged in this Court. It was open to his Honour to so conclude. In this Court, the Crown argued that these findings called for the nomination of longer indicative sentences.

109. The sentencing Judge pointed to the following features which I adopt for the purpose of resentencing:

1. Each offence involved abuse and violation of "the most fundamental position of trust" as the Applicant was the victim's biological father. His Honour expressly noted the need for caution in giving undue weight to abuse of a position of trust where the fact that the victim was under the authority of the Applicant was an element of the offence as it was in six offences (Counts 8, 9, 10, 11, 12 and 13) - however, it was not an element of the 11 offences under s.61M(2) Crimes Act 1900, so that the aggravating factor in s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 had full operation for those offences without any risk of double counting.

2. The victim was in most instances well below the maximum age applicable to the offence. His Honour noted (correctly) that "the younger the child the more serious the offence": BT v R [2010] NSWCCA 267 at [22].

3. The indecent assaults were often constituted by skin-to-skin contact and forced touching of the Applicant's penis which elevated their objective gravity: R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 at [31]; Corby v R [2010] NSWCCA 146 at [71].

4. In a number of incidents, the touching continued until the Applicant ejaculated.

5. There was a significant age difference (27 years) between the Applicant and the victim, a further factor which elevated the objective gravity of the offences: Corby v R at [77].

6. The offences were not isolated. They formed a pattern of sexual abuse over a period of years such that the abuse became so normalised that it was difficult for the victim to specify the dates of all the abuse.

7. The offending occurred in the victim's home including when she was sleeping or showering and, on one occasion, despite the victim trying to lock the Applicant out of the room. The sentencing Judge noted, however, that care should be taken not to double count the statutory aggravating factor under s.21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 in light of the filial relationship between the Applicant and victim.

8. A number of the offences involved persistent abuse by the Applicant notwithstanding the clearly demonstrated resistance and unwillingness of the victim.

9. Some of the offending involved threats by the Applicant in the instruction to his young daughter not to disclose what he had done to anyone.

10. The victim was vulnerable, as a child who was subject to repeated sexual abuse by a parent.

110. Other findings made by the sentencing Judge remain applicable on resentencing in this Court. In particular:

1. Offence 3 was committed whilst the Applicant was on conditional liberty and that is an aggravating factor to be taken into account on sentence for that offence: s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999.

2. The emotional harm suffered by the victim was substantial and precisely the kind reasonably expected to result from offending of this nature (see [75]-[76] above).

3. The Applicant's record of prior convictions denied him leniency.

4. The Applicant pleaded guilty in the Local Court. Accordingly, a discount of 25% for the Applicant's pleas of guilty should be applied to each indicative sentence: JM v R at [39](3); PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 at [71]ff.

5. As was conceded by the Applicant, both specific and general deterrence are major considerations in this sentencing exercise.

6. There appears to be a link between the Applicant's consumption of drugs and alcohol and the offending, but this was not a mitigating factor: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999.

7. The Applicant's prospects of rehabilitation for sexual offending are linked in part to his rehabilitation for drugs and alcohol.

8. The Applicant demonstrated belated remorse to Dr Ellis in June 2019 - this remains the appropriate finding with the Applicant’s affidavit dated 8 April 2020 not adding to this analysis.

111. In considering issues of accumulation, concurrency and totality for the purpose of notional accumulation in arriving at an aggregate sentence, it is necessary to bear in mind that these were multiple offences committed against the Applicant’s young daughter over a period of nearly 10 years. The fact that there was similar offending on occasions should not lead to an artificial or unjust assessment of notional concurrency.

112. The fact that the offences were committed against a single victim permits this case to be contrasted with cases of offences committed against several victims, such as R v Van Ryn. However, this was a grave and protracted course of criminal conduct on the part of the Applicant involving predatory sexual exploitation of his own daughter from the time she was about five years old until the time she was about 14 years old. Each of these offences constituted a frightening and traumatising experience for the victim from a time when she was a very young girl until her teenage years. The commission of one offence of this type is grave enough for a young victim, let alone the destructive effect of multiple offending such as this upon the victim’s childhood years.

113. I have taken into account that some offences were committed as part of a related series of criminal acts on the same day. However, the offences were spaced out over a period of years. The harm done to the victim was substantial and magnified by the repeated criminal conduct of the Applicant which left her in a state of constant anxiety and confusion because of abuse directed at her by her own father who should have been her carer, and not a predator exploiting her vulnerability.

114. The totality principle requires the Court, where there is a series of offences, to review the total sentence and consider whether the aggregate is a just and appropriate measure of the total criminality involved. It has been said that the Court should “take a last look at the total just to see whether it looks wrong” with this involving consideration of the totality of the criminal behaviour and a check as to whether the proposed sentence is appropriate for all the offences. In this context, it has been said that the totality principle serves to ensure that an offender is not subjected to a “crushing sentence”: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [70]-[71]. In ZA v R, Fullerton J and I said at [84]:

“As this Court said in R v MAK; R v MSK at 165 [17]-[18], in cases of multiple offending, the particular offender may warrant what is a very substantial sentence which, in the view of some, might be capable of being characterised as a crushing sentence. However, the ultimate sentence to be imposed should bear reasonable proportionality to the objective gravity of the offences for which the Applicant was to be sentenced.”

115. As in ZA v R, the offences in the present case were committed by the Applicant against his own young daughter over an extended period of time. Sexual abuse by a father against his own young daughter involves an abuse of trust of the highest order: ZA v R at [104].

116. In sentencing in a case such as this, there is a need to maintain public confidence in the administration of justice when sentencing for multiple offences: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [18]; R v Van Ryn at [229]. That principle has application as well in a case of multiple sexual offences committed against an offender’s young daughter over an extended period of time.

117. The sentencing Judge did not make an individual finding of objective seriousness concerning each offence. As noted above (at [108]), his Honour said that, with the possible exception of Offence 17, each was a very serious example of offences of that kind. No complaint was made in this Court concerning that approach.

118. The maximum penalty and standard non-parole period for offences are legislative guideposts to be considered on sentence: Muldrock v The Queen at [27]. The relatively close proximity between the maximum penalty and standard non-parole period for Offences 3, 4, 5, 6, 7, 10, 14, 15 and 17 has been regarded as unusual, but it remains the responsibility of the Court to give proper attention to these (and all other) standard non-parole periods: Corby v R at [71].

119. I accept the Crown submission that findings concerning the seriousness of the offences were not reflected in the indicative sentences nominated by the sentencing Judge.

120. It is appropriate to make findings concerning the objective seriousness of each offence. Having regard to the description of each offence set out earlier in this judgment and the factors referred to at [109]-[110] which bear upon objective seriousness of the offences, I am satisfied that:

1. Offences 2, 3, 4, 7, 8, 10, 11, 12, 13, 15 and 16 fall at about the mid-range of objective seriousness;

2. Offences 1, 5, 6, 9, 14 and 17 fall below the mid-range of objective seriousness.

121. Having regard to aspects which bear upon the nomination of indicative sentences for each individual offence and, after taking into account the 25% discount for the Applicant’s guilty pleas (with some rounding), I record the following indicative sentences for the Applicant’s offences:

Count	Offence	Maximum Penalty and SNPP	Indicative Sentence
1 (Sequence 9)	Between 20 April 2005 and 2 July 2007 (Victim 4-6 years old): Indecent assault person aged under 10 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: five years	Imprisonment for one year and six months with a non-parole period of one year and one month
2 (Sequences 10 and 11)	Between 2 July 2007 and 8 August 2009 (Victim 6-8 years old) Indecent assault person aged under 10 years Section 61M(2) Crimes Act 1900	10 years imprisonment’ SNPP: five years	Imprisonment for two years and three months with a non-parole period of one year and eight months
3 (Sequence 22)	Between 1 January 2008 and 31 December 2008 (Victim 7-8 years old) Indecent assault person aged under 10 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Imprisonment for two years and nine months with a non-parole period of two years
4 (Sequence 14)	Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Imprisonment for two years and six months with a non-parole period of one year and 10 months
5 (Sequence 15)	Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Imprisonment for two years with a non-parole period of one year and six months
6 (Sequence 16)	Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) Indecent assault person aged under 16 years Section 61 M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Imprisonment for two years and three months with a non-parole period of one year and eight months
7 (Sequence 17)	Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Imprisonment for two years and six months with a non-parole period of one year and 10 months
8 (Sequence 7)	Between 26 January 2013 and 27 January 2013 2015 (Victim 12 years old) Aggravated act of indecency with person aged under 16 years (under authority) Section 61O(1) Crimes Act 1900	Five years’ imprisonment No SNPP	Imprisonment for two years
9 (Sequence 2)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated act of indecency with person aged under 16 years (under authority) Section 61O(1) Crimes Act 1900	Five years’ imprisonment No SNPP	Imprisonment for one year and six months
10 (Sequence 3)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated indecent assault (under authority) Section 61M(1) Crimes Act 1900	Seven years’ imprisonment SNPP: five years	Imprisonment for two years with a non-parole period of one year and six months
11 (Sequence 4)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated act of indecency with person aged under 16 years (under authority) Section 61O(1) Crimes Act 1900	Five years’ imprisonment No SNPP	Imprisonment for two years
12 (Sequence 8)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated sexual intercourse with person above 14 years and under 16 years (under authority) Section 66C(4) Crimes Act 1900	12 years’ imprisonment No SNPP	Imprisonment for four years and six months
13 (Sequence 6)	Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Aggravated act of indecency with person aged under 16 years (under authority) Section 61O(1) Crimes Act 1900	Five years’ imprisonment No SNPP	Imprisonment for two years
14 (Sequence 18)	Between 1 January 2012 and 31 December 2012 (Victim approximately 12 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Imprisonment for two years and six months with a non-parole period of one year and 10 months
15 (Sequence 19)	Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Imprisonment for two years and six months with a non-parole period of one year and 10 months
16 (Sequence 24)	Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) Attempt indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years imprisonment No SNPP	Imprisonment for two years and six months
17 (Sequence 21)	Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) Indecent assault person aged under 16 years Section 61M(2) Crimes Act 1900	10 years’ imprisonment SNPP: eight years	Imprisonment for two years with a non-parole period of one year and six months

122. It will be observed that the indicative sentence nominated for many of the offences is higher than those selected by the sentencing Judge (see [5] above). In selecting the indicative sentences, I have taken into account all matters to be considered at that stage of the sentencing process: JM v R [39](3)-(4), (7).

122. I have considered submissions made on the question of special circumstances. I do not regard the prospect of the Applicant’s deportation to New Zealand as being a factor assisting him on the question of special circumstances. The prospect of deportation is irrelevant to the structuring of a sentence and it is an error to use deportation to determine any aspect of a sentence: R v Pham [2005] NSWCCA 94 at [13]-[14]; He v R [2016] NSWCCA 220 at [23]. It is impermissible to consider the fact of deportation in determining the length of the non-parole period for an offender who is likely to be deported: R v Mirzaee [2004] NSWCCA 315 at [20]-[21]; R v Pham at [13]; He v R at [25]-[26], although an offender who is likely to be deported should not be denied a finding of special circumstances if the person would otherwise qualify for such a finding.

123. I do not consider that the Court should reduce the sentence that would otherwise be imposed on the Applicant, or structure the sentence differently, because he is anxious about the prospect of deportation: R v Qin [2008] NSWCCA 189 at [38], [40].

124. Nor am I persuaded that any anxiety experienced by the Applicant because of the prospect of deportation supports a finding of special circumstances.

125. With respect to the Applicant’s concern about the COVID-19 pandemic, I note that he is 46 years old and is housed at a regional correctional centre. There are some restrictions upon visits and the availability of courses as a result of the COVID-19 pandemic. However, it would be speculative to conclude that these restrictions will be in place for any more than a temporary period.

126. If the Applicant is released on parole at the conclusion of the non-parole period and is not deported, there will be ample time by way of conditional liberty in the community to aid rehabilitative measures.

127. Having considered the various matters raised by the Applicant individually and cumulatively, I am not persuaded that a finding of special circumstances should be made in this case.

128. I return to the question posed by s.6(3) Criminal Appeal Act 1912 in light of the approach stated in R v RO (see [105]-[106] above).

129. The aggregate sentence imposed by the sentencing Judge comprised imprisonment for 14 years with a non-parole period of 10 years and six months. His Honour declined to make a finding of special circumstances.

130. Having considered all objective and subjective factors relevant to sentence in this case and applicable sentencing principles, I am satisfied that no lesser head sentence of imprisonment than one of 14 years should be passed in this case.

131. The non-parole period which forms part of the aggregate sentence should reflect the minimum period which the Applicant should serve in custody having regard to all factors relevant to the imposition of sentence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [57], [65].

132. I am satisfied that a non-parole period of no less than 10 years and six months remains appropriate in this case as the minimum custodial term which the Applicant should serve for his offences.

133. Having undertaken the exercise of independent sentencing discretion required by law, I express the conclusion for the purpose of s.6(3) Criminal Appeal Act 1912 that no lesser sentence is warranted in law in this case than the aggregate sentence imposed upon the Applicant at the Sydney District Court on 2 August 2019.

134. Given that conclusion, it is not necessary to state the aggregate sentence which was appropriate in this case (see [106] above).

A Concluding Observation

136. Before concluding this judgment, there is a further issue which is appropriate to be raised.

137. The sentencing Judge in this case delivered what he described as sentencing “remarks” on 2 August 2019. Different terms are used by different Judges and Magistrates to describe a sentencing decision, including “remarks on sentence”, “sentencing remarks”, “sentencing reasons” or “sentencing judgment”.

138. The function being exercised by a Court when passing sentence is well known. In R v Hamieh [2010] NSWCCA 189, the Court (Beazley JA, Kirby J and myself) said at [29]-[30]:

29   … The principal purpose of remarks on sentence is to provide an oral explanation to the offender, the victim(s) and persons in Court at the time when sentence is being passed: R v Bottin [2005] NSWCCA 254 at [12]; Curtis v R [2007] NSWCCA 11 at [30]-[31]; R v Hersi [2010] NSWCCA 57 at [7].

30    Remarks on sentence serve other purposes as well, including informing the community and an appellate court of the reason for imposition of the sentence: R v Duffy [1999] NSWCCA 321 at [11]; R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 394-395 [42]-[44]; R v JCE [2000] NSWCCA 498; 120 A Crim R 18 at 21 [19]; Thomas v R [2006] NSWCCA 313 at [16].”

139. The use of the term “remarks” in this context has been called into question recently by Basten JA in You v R [2020] NSWCCA 71, where his Honour said at [21]:

“It is possible that the practice of referring to a judgment on sentence (that phrase being used by the judge in this case) by the depreciatory phrase ‘remarks on sentence’, may tend to equate those ‘remarks’ with remarks made in the course of the hearing. The phrase ‘remarks on sentence’ is, in any event, an inaccurate description of the judicial function being exercised in delivering a judgment. It might be better if that terminology were abandoned, despite long standing usage and the habits of a generation.”

140. I do not agree with Basten JA’s view on this issue.

141. The terms “sentencing remarks” or “remarks on sentence” are well understood by those engaged in the criminal courts. Judges who are called upon to sentence offenders are well aware of the grave and important function being undertaken where oral reasons are delivered in the presence of a range of persons including the offender, the offender’s family, the victim, the victim’s family (including the family of a deceased victim), investigating police officers, members of the public and the media. The oral explanation contained in sentencing remarks fulfils the purposes referred to in R v Hamieh at [29]-[30] (at [138] above).

142. With respect, it is wrong to suggest that the term “remarks on sentence” is a “depreciatory phrase” which is outdated and should be abandoned. The possible confusion raised by Basten JA between “remarks on sentence” and “remarks” made in the course of a sentencing hearing has not been suggested in other decisions.

143. It is notable that the term “sentencing remarks” is used regularly at the present time by the Judiciary of England and Wales, in the Crown Court and the Central Criminal Court, when sentencing offenders: cf Chin-Charles v R; Cullen v R [2020] 1 Cr App R (S) 6; [2019] EWCA Crim 1140. It is not an outdated or confusing term in that jurisdiction.

144. Further, and importantly, the term “remarks” has been used by the New South Wales Parliament in enacting the Courts Legislation Amendment (Broadcasting Judgments) Act 2014. That Act amended the Supreme Court Act 1970 and the District Court Act 1973 to provide for a presumption in favour of the recording and broadcast of “judgment remarks” in the Supreme Court and the District Court. Section 127 Supreme Court Act 1970 and s.178 District Court Act 1973 each define “judgment remarks” in the following way:

“judgment remarks of the Court means:

(a)    in relation to a criminal trial - the delivery of the verdict, and any remarks made by the Court when sentencing the accused person, that are delivered or made in open court, and

(b)    in relation to any other proceedings - any remarks made by the Court in open court when announcing the judgment determining the proceedings.”

145. In the course of the second reading speech concerning the Courts Legislation Amendment (Broadcasting Judgments) Act 2014, the Attorney General, Mr Hazzard, said (Legislative Assembly, 18 June 2014, Hansard, page 29,766) (emphasis added):

“While proceedings are generally heard in open court and the public are able to attend in person, with more than 170,000 criminal matters dealt with by our courts each year, the great majority of people rely upon electronic media for information about court cases. New South Wales courts have allowed sentencing remarks to be broadcast previously, with four high-profile sentences filmed since 2009 and three documentaries made inside New South Wales courts since 2004. However, there are currently no guidelines promoting consistency in deciding whether to allow cameras into the courts. This bill seeks to bring greater transparency and consistency to the process.”

146. Later in the second reading speech, the Attorney General said:

“The Government's policy at this time is that broadcasting should be limited to verdicts, sentencing remarks and civil judgments.”

147. Far from being ripe for abandonment, the term sentencing “remarks” has contemporary legislative status in statutes designed to further serve the purpose of informing the community about sentencing in the manner referred to in R v Hamieh at [30] (see [138] above).

Orders

148. I propose the following orders:

1. leave to appeal against sentence granted;

2. appeal dismissed.

149. ADAMSON J: I agree with the orders proposed by Johnson J for the reasons given by his Honour.

150. BELLEW J: I agree with Johnson J.

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Decision last updated: 08 May 2020