Mills v R

[2017] NSWCCA 87

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mills v R [2017] NSWCCA 87
Hearing dates:	3 April 2017
Decision date:	05 May 2017
Before:	Leeming JA at [1]; R A Hulme J at [5]; Beech-Jones J at [81]
Decision:	1. Leave to appeal allowed and the appeal against sentence upheld. 2. Quash the sentence imposed in the District Court on 11 December 2015 and lieu, sentence the applicant to imprisonment comprising a non-parole period of 10 years with a balance of term of 3 years 6 months. The sentence will date from 4 December 2014 and the applicant will become eligible for release on parole upon the expiration of the non-parole period on 3 December 2024.
Catchwords:	CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether the sentencing judge erred in assessing objective seriousness as high range – where only aggravating circumstances under s 61J(2) were (d) age and (e) under authority – where four particularised offences were representative in nature of multiple sexual assaults – identifying absent aggravating factors does not mitigate seriousness – finding of high range open to the sentencing judge CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether sentence manifestly excessive – where sentencing judge’s starting point close to maximum penalty – present case not worst category – sentence unreasonable – appeal allowed and applicant re-sentenced
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) s 15A Crimes Act 1900 (NSW) ss 61J, 61JA, 66A(2), 66EA(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3), 44
Cases Cited:	Baines v R [2016] NSWCCA 132 Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 Hitchen v R [2010] NSWCCA 77 House v The King [1936] HCA 40; 55 CLR 499 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mammone v R [2013] NSWCCA 95 Mulato v R [2006] NSWCCA 282 R v JCW [2000] NSWCCA 209; 112 A Crim R 466 Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 The Queen v Kilic [2016] HCA 48
Category:	Principal judgment
Parties:	Mills (a pseudonym) (Applicant) Regina (Crown)
Representation:	Counsel: Mr S Fraser (Applicant) Ms M Cinque SC (Crown)   Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):	2014/357915
Decision under appeal	Court or tribunal: District Court Date of Decision: 11 December 2015 Before: Syme DCJ File Number(s): 2014/357915

Judgment

1. LEEMING JA: This application for leave to appeal against the sentence of 16½ years imprisonment with a non-parole period of 12 years and 4 months following a plea of guilty to an offence contrary to s 66EA of the Crimes Act 1900 (NSW) is not without its difficulties.

2. I have had the considerable advantage of reading the judgment of R A Hulme J in draft. I respectfully agree with his Honour that ground 1 is not made out, for the reasons his Honour gives. There was no error in regarding the offence as being at the "high range". That may be seen by having regard to the range of ingredient offences which comprise elements of the offence of persistent sexual abuse of a child created by s 66EA, most of which are less serious than aggravated sexual assaults committed by the offender contrary to s 61J. To my mind, there is force in the submission made by the Crown that s 66EA was "meant to deal with offending at the lower level". When one bears in mind the manipulation or pressure which the offender brought to bear upon his daughter to suppress her initial complaint, the continuation of the offending thereafter and the very serious physical and psychological harm his daughter suffered, the conclusion of the primary judge was amply open.

3. The second ground of appeal is that the sentence was manifestly excessive. The offender's submissions focussed on the undiscounted starting point of 22 years' imprisonment, before a 25% reduction was made for the offender's guilty plea. The maximum penalty for the offence is imprisonment for 25 years. Initially I was attracted to the Crown's submission that although a starting point of 3 years less than the maximum possible sentence of 25 years amounted to a stern sentence, it was not manifestly excessive for an offence at the high range with few mitigatory elements save for the guilty plea. However, on reflection, I respectfully agree with RA Hulme J's analysis. Without for a moment doubting that the offending conduct was of the utmost gravity, the undiscounted starting point was commensurate only with an offence in the worst category of case, and that is not this case.

4. I agree with the resentencing proposed by R A Hulme J, and the orders his Honour proposes.

5. R A HULME J: This is an application for leave to appeal against a sentence imposed by her Honour Judge Syme in the District Court at Sydney on 11 December 2015 for an offence of persistent sexual abuse of a child.

6. The offence is contrary to s 66EA(1) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years.

7. The sentence imposed was one of 16 years and 6 months with a non-parole period of 12 years and 4 months commencing on 4 December 2014. This followed a reduction of 25 per cent of the sentence that would have been imposed (22 years) but for the applicant's early plea of guilty.

8. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication of anything that would identify the victim and, as she is the natural daughter of the applicant, this includes his name. (A pseudonym has been used in the case title.)

Grounds of appeal

9. The applicant relies upon the following grounds of appeal:

1   The sentencing judge erred in assessing the objective seriousness of the offending as "at high range for the offence charged".

2   The sentence is manifestly excessive.

Facts

10. The charge to which the applicant pleaded guilty was in the following terms:

"[B]etween the 1st day of January 2011 and the 4th day of December 2014 … did on 3 or more separate occasions occurring on separate days … engage in conduct in relation to a particular child that constituted a sexual offence, to wit, sexual assault."

11. The offences occurred in a suburban home where the victim lived with her parents and two older teenage siblings. She was aged 11 when the offending commenced and 14 when it concluded.

First particularised incident

12. The victim told police that her father started raping her around the end of 2011/beginning of 2012 and continued until the day he was arrested on 4 December 2014.

13. The first occasion she could recall was a day when she returned home from school at about 3.30pm. Her father was the only other person there. The victim went to her bedroom to do homework. The applicant came and asked her to come to his bedroom. She did as she was told; worried that she was in trouble about something. He locked the door and sat beside her on the bed.

14. The applicant asked her to sit on his lap. A short time later he asked her to stand and then to straddle him while he sat on the end of the bed. She did as she was asked. He lifted her arms and draped them around his neck. He then said, something to the effect of "How can I feel inside you?" Confused, she replied, "Like tickling?" He replied, "Private parts". She said, "No".

15. The applicant then moved her so that she was seated on the end of the bed and removed her pants and underpants. Using both his hands he opened her legs and proceeded to have penile-vaginal intercourse until ejaculation. He then told her to have a shower and said, "Don't tell anybody". About an hour later the pair left the home to pick up her mother and sister. During the car trip the applicant held her hand which she thought was very strange. As they arrived at the pickup location he said, "Remember not to tell your mum or anyone".

Early complaints but the assaults continued

16. The victim told her sister and her cousin about this sexual assault about two weeks later. Her brother found out and her mother was told. The agreed statement of facts includes that "The family dynamics became very stressful after the disclosure". About a month later, the victim withdrew the allegation, saying she might have been dreaming. She subsequently told her mother and some welfare authorities that she had lied because she was scared.

17. Family life returned to normal after this but the offender continued with his sexual assaults. The victim later told police, "I just didn't tell anybody after that".

18. In early 2014 the victim’s sister suspected something was not right. The victim said that she did not want to say anything in case the same thing happened like the first time she had complained. In February 2014 she told her sister about the continued assaults and showed her some evidence she was storing in a safe in a cupboard in her bedroom.

19. Around August-September 2014 the victim started keeping a record of all the times the applicant sexually assaulted her. She later provided to police a handwritten list recording "every time he does it". She also printed off a questionnaire from a government website, "Sexual Assault Reporting Options", with a view to sending it in to "the people maybe they might do something about it". However, her sister saw the form and told her they would not do anything so she decided not to send it. She later gave this to police as well. It was dated 11 September 2014.

20. The victim also kept tissues which she had used to wipe herself after some of the assaults. These were later found to bear semen with the applicant's DNA profile.

Second particularised incident

21. The second assault particularised in the agreed statement of facts occurred on a weekend in early November 2014. The victim was in the kitchen and other members of the family were elsewhere in the house. The applicant came to her and told her to "Go to your grandma's room". He told her to close the door but when she heard him go upstairs she ran out of the room and tried to rouse her sister who was asleep in the lounge room. When her sister did not respond she returned to her grandmother's room and closed the door.

22. The applicant pulled the victim’s pants down and then pulled his own pants down. She tried to resist but he pushed her by her shoulders onto the bed. He then removed her pants completely, forced her legs open and proceeded to have penile-vaginal intercourse to ejaculation.

Third particularised incident

23. The victim's mother and siblings left home at about 7.00am on 4 December 2014. She was attending to domestic chores when the applicant told her to come into his bedroom. She said that she was busy and walked towards her own bedroom but he grabbed her by the wrist and walked her into the master bedroom. The applicant commanded that she "have a sleep" with him and she lay on the bed. When he started touching her she said, "Stop it". When he asked why she was playing "hard to get" she replied, "It's not right".

24. The applicant removed her bra, rubbed her breasts and her stomach. She asked "What are you doing?" He replied, "Massaging". She said "No, you already did it last night, you know, I just want to like have a break". At that point he turned her forcefully onto her back, removed her lower clothing and underwear and proceeded to digitally penetrate her before having penile-vaginal intercourse to ejaculation.

25. The victim retrieved her clothing and went to the bathroom. She wiped herself and retained the tissues. She sent a text message to her sister stating that it had happened again.

Arrest and investigation

26. The applicant was arrested at his home later that morning. Police spoke with the victim and she disclosed the history of assaults and the records and other items she had been keeping.

27. A medical examination recovered the applicant's DNA on a high vaginal swab. The victim also tested positive to chlamydia; an infection that had been transmitted by the applicant.

28. The applicant was interviewed by police and denied the allegations of sexual assault.

29. A victim impact statement was read at the sentence hearing. It included that she had been self-harming throughout the period of the abuse; she had contemplated suicide; she was bruised on occasions when she had tried to fight back; and she was shocked to find out that she had contracted chlamydia from her own father. When her initial complaint was not believed she felt alone. She said she "put things to the back of my mind" but still "blamed myself a lot". She felt "like he's taken my whole life and my dignity" and "he's ruined everything, not just for me but for my whole family". Counsel for the applicant accepted that physical and emotional harm to the victim was an aggravating circumstance. (POS 8.24)

The applicant's personal circumstances

30. The applicant did not give evidence at the sentence hearing and so the judge was left to divine what she could about his personal circumstances from a number of documents.

31. The applicant was aged 42 at the time of sentence. He was one of 12 siblings of Filipino heritage. He came to Australia with his parents and a sister when he was aged 11 or 12. He was educated to Higher School Certificate standard. At the time of his arrest he had been self-employed as a window frame installer. He married at the age of 20 and up to the offending there were no apparent difficulties in the relationship.

32. The applicant had a criminal history that comprised a single entry for a prostitution offence in 2001 that had been dismissed without conviction. (The sentencing judge declined to take into account.)

33. The history the applicant provided to Dr Olav Nielssen, psychiatrist, included that he had started to experience a level of depression when his parents became sick. His mother was diagnosed with bowel cancer and died in 2012. His father died soon afterwards. The applicant's wife first observed him to be depressed after he lost a job in 2008 but noted that his demeanour changed after his mother's illness and his parents' deaths. She urged him to seek psychiatric help but he did nothing to pursue this.

34. The applicant's wife had instituted divorce proceedings but she had maintained contact with him because he did not receive visits in gaol from anyone else.

35. Dr Nielssen made the psychiatric diagnosis of "depressive illness". He found "little" in the applicant's background that might explain the offences. He noted that depressive illnesses are not typically associated with sexual offences. He wrote, "In short, there is no obvious psychiatric explanation for [the applicant's] behaviour".

36. Dr Nielssen considered that the applicant had a low risk of recidivism, explaining that this was "on the basis of his age, the opportunistic and intra-familial nature of the offences, his stable lifestyle up to the time of his arrest, the absence of any pattern of antisocial conduct and the absence of any form of substance use disorder".

37. Dr Nielssen also considered that the applicant had good prospects of rehabilitation "on the basis of the history of stable employment and the support of extended family in Australia". However, he immediately noted that the applicant was likely to lose the support of his wife and his relationship with his children was "uncertain".

38. The author of a Pre-Sentence Report referred to a risk assessment carried out by a Corrective Services NSW psychologist shortly before the sentence hearing which assessed the applicant as being in the "Low risk category relative to other male sex offenders". This assessment was made only on the basis of statistical factors; personal (dynamic) risk factors were not assessed. It was noted that the applicant "would benefit from further psychological assessment to determine the most appropriate intervention to address his sex offending behaviour".

Findings by the sentencing judge

39. The learned sentencing judge made a number of findings including the following:

●   The offences particularised in the agreed facts were not isolated offences but authority was to the effect that the uncharged offences could not be used to increase the punishment. They did, however, deprive the applicant of leniency that might otherwise have been extended. (ROS 3)

●   The level of physical and emotional harm to the victim was an aggravating factor; a finding she noted was not challenged by the applicant's counsel. (ROS 5)

●   There was no evidence of intricate or deceptive planning but the offences were not merely opportunistic either. (ROS 5)

●   The breach of trust as a father in this case was a serious one. The assaults commenced when the victim was only 11 and she was told not to tell anyone. She was forced to withdraw her first complaint after family pressure driven by the applicant. Thereafter she was rendered helpless to complain until she had gathered sufficient evidence herself. The victim lived with her father in the family home and she had nowhere to go. The continued offending was arrogant in the light of her having exhibited signs of distress and requested that he stop. Weapons, violence or threats or violence were not necessary for the abuse to continue. (ROS 6-7)

● Each of the particularised incidents involved offences against s 61J of the Crimes Act for which the maximum penalty is imprisonment for 20 years. The circumstances of aggravation were that the child was under the age of 16 and the applicant was in a position of authority. Each of the acts of penile-vaginal intercourse culminated in ejaculation; a fact that made the offences more serious because of the risk of pregnancy as well as this being a confronting circumstance for a child victim. (ROS 7)

●   Good character was not specifically relied upon in the applicant's case. The prior record could be disregarded. After the first occasion of offending, the applicant was no longer a person of good character. (ROS 7-8)

●   The victim was aged between 11 and 14 while one of the circumstances of aggravation was that the child was under the age of 16. The judge noted, "Generally, the younger the victim the more serious the criminality". (ROS 8)

●   There was no evidence of remorse. The applicant did not give evidence and he mentioned his role in the offending behaviour in the histories he gave to Dr Nielssen and the author of the Pre-Sentence Report. He appeared to shift some blame toward the victim. (ROS 8-9)

●   There was no mental state or psychiatric issues that were causally related to the offending, or at all. (ROS 9)

●   The applicant's prospects of rehabilitation were "guarded at this stage, they may improve if treatment is undertaken". (ROS 11)

●   "This is a high range offence for the offence charged and the offender's moral culpability is high". (More will be said about this shortly in the course of dealing with Ground 1.) (ROS 11)

●   Due to lack of evidence a submission concerning hardship in custody was not accepted. (ROS 12-13)

● There was no basis to find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). (ROS 13-14)

●   There should be a 25 per cent reduction of sentence on account of the applicant's early plea of guilty. (ROS 1; 14)

Ground 1 – error in assessing the objective seriousness of the offending as "at a high range for the offence charged"

40. The learned sentencing judge reviewed in some detail a variety of matters relevant to the objective seriousness of the offence (included in the above summary). She expressed her conclusion in the following way:

"The circumstances of this offending behaviour relate to a level of seriousness that I find is at a high range for the offence charged. I have taken into account the type of offences which are contained in a s 66EA charge and that I have already referred to the s 61J offences, the nature of the offending, the degree of violation, the age of the child, the breach of trust and indeed the entire circumstance of the offending as contained in the facts, including those issues that I have mentioned, harm to the victim, the continued offending after the complaint was made. This is a high range offence for the offence charged and the offender’s moral culpability is high in my view. " (ROS 11)

The applicant's submissions

41. It was submitted that offences against s 61J upon which the charge in the present case were based are not the most serious offences contemplated by s 66EA. Between 2011 and 2014, offences against s 61JA and s 66A(2) had a maximum penalty of imprisonment for life and offences against s 66A(1) and s 66B had a maximum penalty of imprisonment for 25 years.

42. Section 66EA is, relevantly, in the following terms:

66EA Persistent sexual abuse of a child

(1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.

…

(4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(5) A charge of an offence against this section:

(a) must specify with reasonable particularity the period during which the offence against this section occurred, and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

…

(12) In this section:

child means a person under the age of 18 years.

sexual offence means any of the following:

(a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A,

(b) an offence of attempting to commit an offence referred to in paragraph (a),

(c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b).

43. Putting aside the repealed offences in ss 74 – 78Q, I note that the majority of the offences mentioned in paragraph (a) of the definition of "sexual offence" have maximum penalties less than that provided by s 61J.

44. It was also submitted that the s 61J offences particularised in this case "were far from the worst offending contemplated by" by that provision. (AWS 21)

45. Section 61J is, relevantly, in the following terms:

61J Aggravated sexual assault

(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, circumstances of aggravation means circumstances in which:

(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(c) the alleged offender is in the company of another person or persons, or

(d) the alleged victim is under the age of 16 years, or

(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(f) the alleged victim has a serious physical disability, or

(g) the alleged victim has a cognitive impairment, or

(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or

(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

46. It was submitted that the age of the victim was relatively close to the threshold for the circumstance of aggravation (s 61J(2)(d)) "under the age of 16 years. Thus, while it was an aggravating factor, "it would have been more so had she been younger". (AWS 22)

47. It was submitted that aside from those in s 61J(2)(d) and (e), all of the other circumstances of aggravation are absent. Had they been present, the offending would have been more objectively serious. (AWS 23) So, it was submitted that the particularised offending was not at the high end of the range of offending contemplated by s 61J and this was relevant to an assessment of the seriousness of the s 66EA offence. (AWS 25)

48. The number of particularised offences was also submitted to be relevant to the assessment of objective seriousness. Here, there were four offences on three separate days. It was accepted, however, that these were representative in nature and that the agreed facts referred to there having been "multiple sexual assaults" described in a fashion suggestive of some regularity. (AWS 26)

49. Counsel for the applicant conceded that the offending was objectively serious. However, in circumstances where s 66EA can involve far more serious offending it was contended that the judge's finding of this being "a high range offence" of its type was an overstatement of the objective criminality. It was submitted that a correct characterisation would be "on the higher end of the mid-range and, importantly, below the high range". (AWS 28)

Determination

50. The starting point in the determination of this ground is to recognise that the classification of the objective seriousness of an offence is one for the discretionary evaluation of the primary judge: Mulato v R [2006] NSWCCA 282 at [37]. It is a matter that requires assessment of a range of factors which may be susceptible to differing views: Baines v R [2016] NSWCCA 132 at [15]. The assessment of the primary judge is amenable to review only upon the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The issue for this Court is whether the finding by the primary judge was one that was open to her.

51. One of the problems with this ground is understanding what a judge means by a description of where an offence falls within the range of objective seriousness. This is not at all intended to be critical of any judge, let alone the particular judge in this case, because it is impossible to identify a precise point. It is not as if there is a numerical scale that can be used. But in this case it leaves a question as to what the judge meant by "high range".

52. The term "worst case category" is more readily understood. If a case is said to come within that description it is one that warrants the imposition of the maximum penalty for the offence: The Queen v Kilic [2016] HCA 48 at [18].

53. On the other hand, if a case is described as falling within the mid-range, how wide does the particular judicial officer making that assessment regard that part of the range? The same question may arise when the assessment is "above" or "below" mid-range.

54. Similarly, a description of "high range" is somewhat imprecise. It must be distinguished from "worst case category" as that term is understood. It obviously means above mid-range. The only thing that seems certain is that it is somewhere between mid-range and worst case.

55. Counsel for the applicant contended that the assessment should have been "on the higher end of the mid-range and, importantly, below the high range". But if the "high range" is the immediate step up from the "mid-range", is there much difference between being at the top of one and just within the next? (There is obviously an air of unreality about a debate in these terms.)

56. Having regard to the following features, I do not accept that a finding which may be understood as being one of above mid-range but short of worst case category was not open to the judge in this case:

● The particularised offences were against s 61J for which the maximum penalty is imprisonment for 20 years. There were two factors ("age" and "under authority") which were circumstances of aggravation for the purpose of the provision. Offences against s 61J are among the more serious offences that are within the term "sexual offence" for the purposes of s 66EA.

●   The offences involved unprotected penile/vaginal intercourse culminating in ejaculation; an undoubtedly confusing and confronting experience for a child to be subjected to.

●   The offences caused substantial psychological and emotional harm. This included the shock when the child found out that her own father had infected her with chlamydia.

●   The particularised offences were representative of conduct that persisted over a period of about three years when the child was aged 11 to 14. The applicant played an influential role in having her initial complaint retracted and then took advantage of her psychologically coerced silence thereafter to continue to achieve his sexual gratification at her expense.

57. Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], "In plain language, it does not make what has been done by an offender less serious because it could have been worse.”

58. I would reject Ground 1

Ground 2 – manifest excess

Submissions for the applicant

59. The submissions for the applicant pointed out that without the 25 per cent allowance for the early plea of guilty the sentence would have been one of 22 years which was close to the maximum penalty of imprisonment for 25 years. (AWS 30)

60. Eight cases in this Court concerning sentencing for a s 66EA offence were relied upon for comparison. It was contended that only one of them, Hitchen v R [2010] NSWCCA 77 involved a sentence similar to that imposed upon the applicant (in that case, 16 years with a non-parole period of 12 years) and yet it was said to involve significantly more serious offending. The other seven cases involved sentences that were lower by quite a margin. So, it was submitted, the sentence imposed in the present case was manifestly excessive. (AWS 32-33)

61. Counsel for the applicant submitted that the offending was "high in the mid-range" and the applicant had mitigating factors to be taken into account: a criminal record that could be disregarded and good prospects of rehabilitation according to Dr Nielssen and the Community Corrections psychologist. (AWS 35)

Determination

62. To make good this ground the applicant must establish that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. It is also important to bear in mind that absent error, this Court is not permitted to substitute its own opinion for that of the sentencing judge simply because it would have exercised the sentencing discretion in a different manner: House v The King; Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].

63. A complaint of manifest excess is a conclusion; it does not admit of lengthy exposition; and it is derived from an inference that there was "a failure properly to exercise the discretion which the law reposes in the court" below: Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 at [58]-[59].

64. I have earlier referred to features of the offending that warranted a finding of above mid-range objective seriousness (see above at [53]). In summary, it involved full penile-vaginal intercourse with ejaculation on a regular basis by a father with his daughter when she was aged from 11 to 14. It is true that only three such occasions were particularised in the agreed facts, however the multiplicity of additional offending was not disputed and had a bearing upon the assessment of the objective gravity of the offence. It could not be used to increase the level of punishment: R v JCW [2000] NSWCCA 209; 112 A Crim R 466. It was relevant to "demonstrate the degree of seriousness with which the charged offence [in this case, read particularised offences] should be viewed": Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [146].

65. As the Crown pointed out, there was little to mitigate the applicant's sentence. Dr Nielssen was unable to identify any psychiatric explanation for the offending. The primary judge found that the applicant's prior good character did not assist him, given the length of time over which the applicant offended. The applicant was not found to be remorseful. Further, despite what Dr Nielssen and the Community Corrections psychologist said on the subject, the primary judge found that the applicant's rehabilitation prospects were guarded. In reality, all that the applicant had in his favour was his absence of relevant prior convictions and his early plea of guilty.

66. The Crown submitted (correctly with respect) that general and personal deterrence were important considerations and that there was a need, as the primary judge found, for denunciation of the applicant's conduct and recognition of the harm occasioned to the victim.

67. The point was made in the written submissions for the Crown that it is the actual sentence passed, not the starting point assessed before reduction on account of a plea of guilty, which is the subject of the appeal. So much may be accepted but the starting point cannot be ignored; doing so would be to disregard the allowance made for the applicant's early plea and avoid consideration of whether he in fact received the benefit that the judge said she would allow for it.

68. As the Crown contended and the applicant accepted, there is no range of sentence that can be derived from other cases that can be drawn upon to usefully compare the sentence in question. The Judicial Commission of New South Wales' statistical database for offences against s 66EA currently contains only 17 cases in the 7 year period to September 2016. Most of the cases (14) involved pleas of guilty and the sentences range from 5 years to 17 years. Six of these cases were included in the eight summarised in the applicant's written submissions. I respectfully agree with the comment at the end of the summary that they "demonstrate the varied objective conduct captured by s 66EA as well as the varied personal circumstances of the respective offenders" or, as it was put in oral submissions, "it's a small sample and they demonstrate diverse [objective] and subjective cases". (AWS 33; 3.4.17 at T 5.3)

69. It is useful, however, to note the case of Hitchen v R to which the applicant referred. It involved an offender sentenced in the District Court to a total term of 24 years with a non-parole period of 18 years for an offence contrary to s 66EA with sundry other offences relating to child pornography that were the subject of sentences or were taken into account. The sentence for the s 66EA offence was 16 years with a non-parole period of 12 years after a 25 per cent reduction on account of the offender's plea of guilty.

70. The s 66EA offence in that case involved offending over a three year period against a child from when she was aged seven. There were 12 separate occasions of intercourse (oral, vaginal and anal). There were also 36 occasions on which the child was subjected to acts of indecency. Some of the offences were photographed or recorded on video giving rise to some of the child pornography offences. The sentencing judge found that the s 66EA offence was in the worst case category. Howie J in this Court (McClellan CJ at CL and Rothman J agreeing) made the same assessment. Error was found in excessive accumulation of sentences with the result that the overall sentence was reduced to 18 years with a non-parole period of 14 years. The sentence for the s 66EA offence was undisturbed.

71. Reference to a single case provides no basis to draw a conclusion of manifest excess in the present case. However, Hitchen v R does serve to illustrate what a worst category case can be. As bad as it is, the present case is not there, nor very close to it. Yet against the maximum penalty of imprisonment for 25 years, the starting point adopted by the primary judge of 22 years is commensurate with an assessment that it was within that realm. In my view, it was unreasonable to assess the sentence at that level and it follows that the resulting sentence of 16 years and 6 months is manifestly excessive.

Resentencing

72. My assessment of the objective seriousness of the offence is, I perceive, consistent with that made by the primary judge. Expressing it more definitively, it is above the mid-range but not so grave as to warrant the maximum penalty, or close to it: Kilic v The Queen at [20].

73. Two affidavits were read at the hearing of the application in the event that the Court was moved to consider resentencing.

74. The applicant deposed that “in my world demons exist”. He believed in them; he had seen them and they spoke to him. However, he had told Dr Nielssen that he saw ghosts and the doctor does not appear to have attributed anything significant of a psychiatric nature to such claim. It was not suggested to this Court that there was either, and no further psychiatric assessment was provided to us.

75. The applicant also professed remorse but I am not prepared to accept that this qualifies as a mitigating factor under s 21A(3)(i) in light of the fact that remorse was not advanced as such by his counsel before the primary judge (e.g. POS 11.37).

76. The applicant is being supported in custody by visits from his ex-wife and family members, contrary to the submissions made at first instance that he would be quite isolated and have no visitors. There are some limitations on the applicant’s ability to access employment, programs, courses and recreation facilities as a result of being on limited association protection. However, this is of marginal significance given that the restrictions do not appear to be particularly severe or something that will endure for the entirety of the applicant’s sentence.

77. The applicant’s claim to have been a co-operative inmate with no internal disciplinary charges is confirmed by the documents annexed to the affidavit of his solicitor.

78. No submission was made that any of the findings of the sentencing judge as to subjective matters should be revisited by this Court. I see no reason to depart from them. That includes allowing a 25 per cent reduction on account of the applicant’s early plea of guilty.

79. No submission was made that special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act should be found so as to reduce the proportion of the sentence represented by the non-parole period. I have considered the issue but have concluded that there is no justification for it (aside from some rounding down for practical purposes). The potential parole period provided by sentencing in the usual statutory proportions should be adequate to meet the need to supervise the applicant in his reintegration into the community following a lengthy period of incarceration.

Orders

80. I propose the following orders:

1   Leave to appeal allowed and the appeal against sentence upheld.

2   Quash the sentence imposed in the District Court on 11 December 2015 and lieu, sentence the applicant to imprisonment comprising a non-parole period of 10 years with a balance of term of 3 years 6 months. The sentence will date from 4 December 2014 and the applicant will become eligible for release on parole upon the expiration of the non-parole period on 3 December 2024.

81. BEECH-JONES J: I agree with the judgment of R A Hulme J and the further reasons of Leeming JA.

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Decision last updated: 05 May 2017