Montero v R

[2013] NSWCCA 214

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Montero v R [2013] NSWCCA 214
Hearing dates:	6 August 2013
Decision date:	13 September 2013
Before:	Leeming JA at [1] R A Hulme J at [9] Button J at [66]
Decision:	Extension of time to file application for leave to appeal against sentence refused
Catchwords:	CRIMINAL LAW - sentence appeal - indecent assault and aggravated sexual assault - offences committed in home of appellant while victim a guest - sentencing judge considered the location of crime at a 'home' as an aggravating feature of the offence - s 21A(2)(eb) Crimes (Sentencing Procedure) Act considered - entitlement of victim to safety and security - circumstances capable of making offence more serious - no lesser sentence warranted - application for leave to appeal out of time - extension of time refused
Legislation Cited:	Community Protection Act 1994 Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) Criminal Appeal Act 1912 (NSW) Poisons Act 1966
Cases Cited:	Arja v R [2010] NSWCCA 190 Butler v R [2012] NSWCCA 23 Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478 DJM v R [2013] NSWCCA 101 DS v R [2012] NSWCCA 159 Edwards v R [2009] NSWCCA 199 EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740 Essex v R [2013] NSWCCA 11 Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 Ingham v R [2011] NSWCCA 88 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 NLR v R [2011] NSWCCA 246 OH Hyunwook v R [2010] NSWCCA 148 R v BIP [2011] NSWCCA 224 R v Gazi Comert [2004] NSWCCA 125 R v Gregory [2002] NSWCCA 199 R v Knight [1998] 1 NZLR 583 R v Lawrence [1980] 1 NSWLR 122 R v Melbom [2013] NSWCCA 210 R v MH [2011] NSWCCA 230 R v Ramsden [1972] Crim LR 547 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Reg v Unger [1977] 2 NSWLR 990 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 State of NSW v Kable [2013] HCA 26; (2013) 87 ALJR 737
Category:	Principal judgment
Parties:	Andres Montero (Applicant) Regina (Crown)
Representation:	Counsel: Mr G Wendler (Applicant) Ms H Wilson (Respondent) Solicitors: John Hertz & Associates Solicitor for Public Prosecutions
File Number(s):	2008/14219
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2009-10-30 00:00:00 Before: O'Connor DCJ File Number(s): 2008/14219

Judgment

1. LEEMING JA: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with him that ground 1, the alleged non-compliance with Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, lacks merit, and that any error as alleged in ground 2 in the application of s 21A(2)(eb) by reason of the assaults having taken place in the home of the applicant, at which the complainant was a guest, does not mean that some less severe sentence was warranted such as to engage s 6(3) of the Criminal Appeal Act 1912. I also agree with his Honour's reasoning as to it being open to have regard as an aggravating factor to the fact that the assaults took place upon a guest in the applicant's home, notwithstanding the authorities in this Court, and I (like Simpson and Price JJ) share his reservations about those authorities.

1. There is a further reason for refusing the application for an extension of time. It is well established that a change in the law, even a change whose effect is that a conviction would be quashed on appeal, is not of itself sufficient to warrant the granting of an extension of time in which to appeal. This is an aspect of the principle of finality.

1. That principle was applied in R v Ramsden [1972] Crim LR 547, where a subsequent decision of the Court of Criminal Appeal had laid down the law differently from that which had been applied when Mr Ramsden was convicted, yet his application for an extension of time to appeal was refused, notwithstanding that it was assumed that the summing up at his trial was with the benefit of hindsight shown to be defective.

1. This Court applied the same principle in Reg v Unger [1977] 2 NSWLR 990, where the applicant had been convicted of selling Indian hemp pursuant to a provision under the Poisons Act 1966 which deemed possession of in excess of a prescribed quantity of a drug of addiction to amount to possession for supply or sale. Street CJ, with whom Begg and Ash JJ agreed, proceeded on the basis that the regulation prescribing the quantity was invalid and had not been validated retrospectively by the remedial legislation (at 996B). The Chief Justice said that there was no taint necessarily introduced into the conviction by reason of the subsequent finding that the regulation on which it depended was invalid. That was a consequence of the doctrine of merger, as explained by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 106 (another conviction permitted to stand notwithstanding it was based upon a disallowed regulation). Gageler J referred to the same doctrine as underpinning the independent legal force possessed by judicial orders in State of NSW v Kable [2013] HCA 26; (2013) 87 ALJR 737 at [53] (another case where a man was imprisoned pursuant to orders which would never have been made had the judges at first instance and on appeal correctly determined that the Community Protection Act 1994 was invalid).

1. It may seem hard for a conviction to be permitted to stand when it is based upon a superseded view of the common law or upon an Act or regulation which has later been held to be invalid. That serves to illustrate the importance of the broader issues which are involved. Street CJ explained the position, in a highly influential passage, as follows (at 995F-996A):

"This concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of the philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context. Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions. Indeed the process of appeal, either civil or criminal, is a comparatively recent and

statutory concept - it finds no basis in the common law itself. This

finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. The concept of merger in judgment, both in the civil and in the criminal field, to which Dixon CJ referred, equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law."

For those reasons, the Court in Unger did not exercise its discretion to extend time.

1. Those principles have been applied in this Court, including in R v Gregory [2002] NSWCCA 199 at [38]-[45] and Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 at [19]-[24]. They were applied by the New Zealand Court of Appeal in R v Knight [1998] 1 NZLR 583 at 587-588 on which in turn the Hong Kong Court of Final Appeal has consistently relied (the most recent decision is Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478: see at [9]-[11] and [53]-[59]). All four of those decisions recognise that "exceptional" circumstances must be shown to warrant departing from the principle of finality.

1. What will amount to the requisite exceptional circumstances cannot be defined exhaustively. However, in the present case, the application is more than three years out of time, and the majority of the sentence has been served. Most importantly, there is no explanation at all for the delay from 30 October 2009 until late 2011, save that the decision in Muldrock pointed to the possibility of an argument that the sentencing judge, who was bound by R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, had erred. That demonstrates the wholly adventitious background to the application which is now made. In my view this is a clear case for not departing from the principle stated in Unger.

1. For those reasons, in addition to those given by RA Hulme J, I would refuse to extend the time within which an application for leave to appeal against sentence may be made.

1. R A HULME J: Andres Montero ("the applicant") was sentenced, after being found guilty by a jury, for one offence of indecent assault (s 61L of the Crimes Act 1900 (NSW)) and two offences of aggravated sexual assault (s 61J(1)).

1. The maximum penalty for indecent assault is imprisonment for 5 years. The maximum penalty for aggravated sexual assault is imprisonment for 20 years. For the latter there is also prescribed by the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of 10 years.

1. His Honour Judge O'Connor sentenced the applicant to imprisonment for 2 years for the indecent assault; 4 years for the first of the aggravated sexual assaults; and 4 years 6 months for the second such offence. The sentence for the latter was partially accumulated so that the total effective sentence was one of 7 years with a minimum custodial component of 4 years 6 months. The applicant will become eligible for release on parole on 28 October 2013.

1. The applicant raised two grounds of appeal: first, that the judge erred by attaching "undue significance" to the prescription of a standard non-parole period for the aggravated sexual assault offences; and second, by taking into account as an aggravating factor that the offences occurred in the applicant's home.

1. The judge imposed sentence on 30 October 2009. An application for an extension of time in which to apply for leave to appeal was filed over three years later, on 26 November 2012. I will say more about this later.

Facts

1. There was no dispute with the facts summarised in the judge's sentencing remarks and so I draw from them the following.

1. The offences occurred on 1 January 2008. The complainant was then aged 15. She knew the applicant by having been a friend of his girlfriend, Kelly, and his girlfriend's younger sister, Lauren. The applicant was aged 24.

1. On New Year's Eve, the applicant, Kelly, Lauren and the complainant were at a party where they consumed alcohol. They left at about 2.30am and went to the applicant's home where they stayed for the remainder of the night.

1. The applicant and Kelly initially were in one bedroom while the complainant and Lauren were in another. The applicant went to the other bedroom after an argument with Kelly. Acknowledging that it was his house, Lauren gave up her place in the bed with the complainant and went to the other bedroom to sleep with her sister. The applicant got into bed with the complainant who was asleep and unaware of his presence.

1. The complainant was woken at about 8.30am by the applicant. It is unnecessary to go through the detail of events but they included the applicant indecently assaulting the complainant by touching, kissing and licking her breast. He penetrated her vagina with his finger and then with his penis, despite her resistance. Her struggles did, however, force him to desist. He then masturbated and ejaculated onto her leg.

1. DNA consistent with having emanated from the applicant was subsequently identified in semen inside the complainant's underpants and in saliva on her breast. His defence at trial, that any sexual activity was consensual, was obviously rejected by the jury.

The applicant's personal circumstances

1. The subjective case presented on the applicant's behalf on sentence was remarkable only in that there was nothing about him that served to explain his offending behaviour. Aside from two traffic offences there was no criminal history. He had been raised in a caring and supportive family environment. He had been in regular employment and was qualified in graphic design, small business management, website design and screen-printing. He had most recently been working as a self-employed graphic designer.

1. The applicant described himself as a social drinker and he was not involved in illegal drug taking. He said that on the night of the offence he had about six beers and was "tipsy but not intoxicated". He was described in evidence by his mother and his partner as a caring, family-oriented individual. He and his partner had plans to marry and raise a family.

1. The applicant declined to discuss (on legal advice) the offence with the authors of a Pre-Sentence Report and a Psychological Pre-Sentence Assessment Report. That limited an assessment of his risk of further sex offending but with that limitation in mind, he was assessed by the psychologist who wrote the second of those reports as having a "moderate-low" risk of recidivism.

Sentencing remarks

1. The learned judge took into account in the applicant's favour that the offences were not planned. He also had regard to his lack of relevant previous convictions; good character; unlikelihood of re-offending; and good prospects of rehabilitation.

1. The judge referred to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act which provides that it is an aggravating feature if "the offence was committed in the home of the victim or any other person". This aspect is the subject of the second ground of appeal and will be considered in that context.

1. After referring to the various matters in ss 21A(2) and (3) that he found to be relevant, the judge then turned to a discussion of the objective seriousness of the aggravated sexual assault offences and referred to the following as "matters ... of relevance":

There was no planning and the offences were opportunistic.

The circumstance of aggravation element of the s 61J(1) offences (the complainant being under the age of 16) was regarded as less serious than the other circumstances listed in s 61J(2).

The complainant was 7 months short of her 16th birthday which "places that particular aggravating factor in the lower spectrum of seriousness".

The applicant believed that the complainant was aged 16 or over.

There were no threats made or pressure applied before or after the offences to secure compliance or ensure silence.

The complainant did not sustain any injury.

There was no personal degradation of the complainant.

As to the penetration, the judge noted that the two episodes were of short duration; full penile penetration was not achieved; and ejaculation did not occur within the vagina. In the circumstances of the case, the offence involving penile penetration was more serious than the offence involving digital penetration.

Masturbating and ejaculating upon the victim made the offences more serious.

1. After discussing these matters the judge immediately proceeded to announce that the objective seriousness of the aggravated sexual assault offences "fall below the mid-range for offences of that nature".

1. His Honour then said that the indecent assault offence, "involving the licking and kissing of the victim's breast, [which] again took place over a relatively short period of time, is towards the middle of the range of objective seriousness".

1. The judge declined to apply the standard non-parole period prescribed for the aggravated sexual offences. He said:

Having regard to my findings in respect of the objective seriousness of counts 3 and 4 and my findings in respect of the aggravating and mitigating factors in 21A(2) and (3), I am of the view that the standard non-parole period should not be imposed. Notwithstanding such finding, I have taken the standard non-parole period into account as a benchmark or a guidepost in determining the appropriate sentences. The maximum penalty and the legislature's decision to include a standard non-parole period for such offences, indicates the serious nature of the offences. It is clear that sentences that carry a clear deterrent message must be imposed. (ROS 15)

1. The judge then referred to s 3A of the Crimes (Sentencing Procedure) Act and specifically mentioned two of the purposes of sentencing there listed: "recognition of harm done to the victim and the rehabilitation of the offender".

1. His Honour adverted to the totality principle and indicated that the sentence for the indecent assault offence would be wholly concurrent but there would be partial accumulation of the sentences for the other offences.

1. Special circumstances justifying a reduction of the non-parole component of the overall term were found on the basis of the partial accumulation of sentences; the applicant's age; the fact that he had not previously been to gaol; the fact that he was being held in protective custody (at his own request); and that he would need assistance on reintegrating into society.

Ground 1: "Inappropriately attaching undue significance" to the standard non-parole period sentencing scheme

1. This ground relates to what the judge said in the passage from the sentencing remarks extracted above (at [28]).

1. The sentencing exercise occurred at the time when R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 was thought to set out the correct approach to sentencing for offences for which a standard non-parole period is prescribed. Way, of course, was overruled by the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.

1. Counsel for the applicant relied in written submissions upon the following from Muldrock, at [25] and [28]:

... The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness.

...

Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.

1. It was contended that the passage of the sentencing remarks set out above supported the following submission:

His Honour's approach was to first find reasons why the SMNP period [sic] should not be applied and then proceeded to take into account the SMNP period in any case as a 'benchmark or guidepost'. If the SMNP period had no application there was consequently no mandatory requirement to then use the SMNP as a sentencing 'guide or signpost'. This approach also suggested an erroneous two stage sentencing process contrary to Markarian v The Queen (2005) 228 CLR 357.

1. In oral submissions, counsel for the applicant contended that "his Honour was effectively using the standard non-parole period as controlling and effectively an imperative consideration of the ultimate punishment that the applicant received" (T3.5).

1. These submissions should be rejected.

1. Whilst the judge was sentencing prior to Muldrock, his approach in no way conflicted with anything said there. The passage from the sentencing remarks simply establishes (a) that the judge was not going to impose the standard non-parole period, and (b) that the maximum penalty and the standard non-parole period remained relevant as a benchmark or guidepost in determining the appropriate sentences. There is no complaint about the first of those propositions; nor could there be. And the second proposition is supported by Muldrock itself, at [27]:

Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness".

1. There is nothing in the sentencing remarks that indicates that the judge erred by adopting a "two-staged" approach to the assessment of sentence, or by regarding the standard non-parole period as having "determinative significance": errors identified in Muldrock at [28] and [32]. Moreover, the fact that the judge set non-parole periods for the aggravated sexual assault offences of 3 years and 2 years, when the standard non-parole period is 10 years, suggests that the bearing that it had on sentence was relatively minimal.

1. Ground 1 has no merit.

Ground 2: Error in the application of s 21A(2)(eb) by taking into account as an aggravating factor that the offences took place in the home of the applicant

1. The sentencing judge said:

So far as aggravating factors are concerned, pursuant to s 21A(2), the following subparagraphs are of relevance and are to be taken into account: (eb) The offence was committed in the home of the offender. This aggravating factor coincidentally commenced on the day of the offence. Mr Wendler, who appeared on behalf of the offender, submitted this aggravating factor was in the "neutral category". I note from the Attorney-General's second reading speech he said:

"The courts have long recognised that it is an aggravating circumstance when victims are assaulted in their own homes. The government takes the position that any offence committed in the home of the victim, even if it is also the home of the accused or in the home of another person, violates that person's reasonable expectation of safety and security. This aggravating factor preserves the notion of sanctity of the home where individuals are entitled to feel safe from harm of any kind. This protection should apply in any home".

I regard this aggravating factor as established although perhaps not in such a serious category as an offence committed in the victim's own home, where the expectation of safety and security would even be greater.

1. Subsection (2)(eb) was inserted in s 21A of the Crimes (Sentencing Procedure) Act by the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW). It took effect on 1 January 2008, the day of the applicant's offences. It provides that it is an aggravating factor where an "offence was committed in the home of the victim or any other person". But regard should also be had to s 21A(4):

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

1. In OH Hyunwook v R [2010] NSWCCA 148 at [40], doubt was expressed by Kirby J, with the concurrence of Beazley JA (as her Honour then was) and Johnson J, about whether s 21A(2)(eb) was limited to situations in which the offence was committed by an intruder into the home. However, in EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740, with the concurrence of McClellan CJ at CL and Simpson J, I held (at [79]) that it was not an aggravating factor where an offence is committed in a home in which both the complainant and offender lived. In doing so, I accepted the correctness of what had been said under the general law in R v Gazi Comert [2004] NSWCCA 125. That reasoning was adopted in Ingham v R [2011] NSWCCA 88 at [111]-[112] per McClellan CJ at CL, James and Davies JJ agreeing; R v BIP [2011] NSWCCA 224 at [59]-[61] per Hoeben J (as he then was), Bathurst CJ and James J agreeing; in DS v R [2012] NSWCCA 159 at [145] per Beazley JA, Harrison and McCallum JJ agreeing; and Essex v R [2013] NSWCCA 11 at [72] per Bellew J, McClellan CJ at CL and Rothman J agreeing. Error in this fashion was conceded by the Crown in R v MH [2011] NSWCCA 230 (at [34]).

1. In NLR v R [2011] NSWCCA 246, a sentencing judge had said "the offences took place in the home of the offender", but this was in the context of a discussion about a step-grandfather having violated the trust of two step-granddaughters in a place where they ought to have been safe from such violation. It was held (at [23]) by James J, Bathurst CJ and Johnson J agreeing, that the judge had not taken into account the location of the crimes itself as an aggravating factor.

1. Similarly, in DJM v R [2013] NSWCCA 101, Blanch J, Basten JA and Simpson J agreeing, regarded (at [7]-[10]) a sentencing judge's reference to the offences being committed in the home of the offender and complainant as being nothing more than a reference to the complainant having no place of safety to escape to.

1. In Melbom v R [2013] NSWCCA 210, there was contended to be error in the sentencing judge having stated that she took into account as an aggravating circumstance that "this offence was committed in the home of the offender". The offences involved acts of violence towards two people with whom the offender was living. The Crown, as in the present case, expressly abandoned its proposed submission that previous decisions of this Court in relation to s 21A(2)(eb) where the offender was lawfully in the home were wrong. In relation to that I said, at [44]:

The Crown abandoned its proposed alternative argument in relation to this ground and conceded the correctness of those decisions. This is despite the fact that the plain words of s 21A(2)(eb) do not support the limitation that this Court has placed on their application. It is also despite the fact that it was never intended by Parliament that there should be the constraint upon their application that this Court has imposed: see the second reading speech of the Attorney-General, New South Wales Legislative Council, Parliamentary Debates, Hansard, 17 October 2007 (p 2667ff) where it was said that it would be "an aggravating circumstance when victims are assaulted in their own homes ... even if it is also the home of the accused". However, given the concession by the Crown, now is not the occasion for reconsideration of what has been said previously in this Court on the subject.

1. Simpson J, with the concurrence of Price J, added, at [1]-[2]:

I have read in draft the judgment of R A Hulme J. I agree with his Honour's analysis and the orders he proposes. In relation to Ground 1, I note that the Crown initially sought to challenge the correctness of previous decisions of this Court that hold that the aggravating feature specified in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (that the offence was committed in the home of the victim or any other person) does not extend to offences committed in the home of the victim if the offender lives in the same home. The Crown expressly abandoned that challenge. Why that course was taken is not apparent.

I understand R A Hulme J to have expressed some reservations about the principle stated. I share those reservations. It is, perhaps, time for re-examination by this Court of those previous decisions.

1. It was ultimately held that there was no error in the approach taken by the sentencing judge: Melbom at [51]-[55]. If she had limited her reasons to the bare fact that the offence was committed in the home in which the offender and the victims lived then error would have been established. But the judge went on to provide an explanation as to why she regarded the offence as being more serious. She said that there was "an element of domestic violence"; the victims had nowhere to go because of the domestic relationship; and there was "a special geographical vulnerability for the victims". The judge also referred to the offender having a right to be in the residence of the victims "which made him more dangerous". This was interpreted as meaning that he was armed and volatile and in a relatively confined space with the victims, who were cut off from people in the outside world who may otherwise have intervened.

1. These were all matters that were relevant to the assessment of the seriousness of the offence. The introductory words at the beginning of that passage of the sentencing remarks - "this offence was committed in the home of the offender" - had no material bearing upon sentence. A further matter confirming that conclusion was that the judge's assessment of the level of objective seriousness of the offence in question was broadly consistent with the assessment that had been suggested on behalf of the offender.

1. The written submissions for the applicant in the present case simply referred to Ingham v R and NLR v R in support of a proposition that s 21A(2)(eb) "does not operate to aggravate an offence in circumstances where the offender has a lawful entitlement to be in the premises where it is alleged the offences took place".

1. The Crown submission was that the judge did not regard the location of the offences as greatly exacerbating the criminality, but rather doing so to some slight degree. It was submitted that the judge "did not give this feature great weight" and that "arguably, it had very little or even no impact on the sentences imposed". It was also submitted that, in any event, no lesser sentence was warranted: s 6(3) of the Criminal Appeal Act 1912 (NSW).

1. I am not persuaded that it was wrong in the circumstances of this case for the judge to have regarded it as an aggravating feature that the offences occurred in the applicant's home because it was not that fact alone that was taken into account. There is no question that the applicant was lawfully there. But the complainant was a guest. She had gone to bed with an 18 year old woman who had been her friend for some 6 years. She was entitled in those circumstances to a sense of safety and security. However, unbeknown to her, the applicant took the place of her friend while she slept. And in the morning, he raped her.

1. This is a different set of circumstances to those in the cases where error was found in having regard to the location of the offences in the home as an aggravating circumstances. R v Gazi Comert concerned a sexual assault by a husband of his wife in their home. EK v R concerned sexual assaults by a father in the home in which he and the complainant lived. In Ingham v R, the offender was a regular overnight visitor at the house where he sexually assaulted two complainants who were temporarily in his care as babysitter. R v BIP, DS v R and Essex v R were concerned with sexual assaults in the home by men upon children of their partner.

1. In the present case, the judge appeared to be as much concerned with the "expectation of safety and security" aspect, contrasting as he did with there being a greater such "expectation" if the offence occurred in the victim's own home. This leads me to consider, even if it was contrary to what this Court has previously said about the aggravating factor of offences being committed in a home by persons lawfully entitled to be there, that the judge was nevertheless entitled to take the violation of the expectation of safety and security into account as rendering the offence more serious.

1. In the event that I am wrong, and an error has been made out, it was not, for the following reasons, a material one.

1. First, the matter does not appear to have had a significant impact upon the judge's assessment of sentence in any event. It could have had such impact if the judge regarded the objective seriousness of the offences as being higher than was warranted. But there was no challenge to the assessments the judge made in that respect.

1. Another reason why it appears the matter was insignificant in terms of the assessment of objective seriousness is that the reference to s 21A(2)(eb) appeared earlier in the judge's sentencing remarks. But when the judge came to refer to matters he regarded as relevant to the assessment of objective seriousness (which I have set out earlier at [18]), the feature of the offence being committed in a home was not mentioned.

1. Also, the sentence structure encompassed the identified criminality adequately, but not harshly. For each of the two offences where there were the statutory guideposts of a maximum penalty of 20 years and a standard non-parole period of 10 years, there were sentences of 4 years and 4½ years with non-parole periods of 3 years and 2 years. The sentence for the indecent assault was entirely subsumed and had no operative effect. There was no submission that the degree to which the sentences for the aggravated sexual offences were partially accumulated was beyond the proper exercise of the judge's discretion.

1. As a result, and notwithstanding the various favourable aspects of the applicant's subjective case, even if there was error, I am not of the view that any lesser sentence was warranted and should have been passed: s 6(3) Criminal Appeal Act.

Extension of time

1. The applicant was sentenced on 30 October 2009 but did not file a notice of application for leave to appeal until November 2011. An extension of time is sought. Considerable documentation annexed to an affidavit by the applicant's solicitor was placed before the Court in an endeavour to explain the delay.

1. However, Mr Wendler, counsel for the applicant, conceded that if the grounds of appeal were found to have no merit, then the Court should refuse the application for an extension of time (T2.30). In those circumstances, there is no point in setting out the detail of the attempt to explain the delay except to record that I found much of it remains unexplained. Mr Wendler's concession should be accepted.

R v Unger

1. I wish to add something to my judgment after having had the opportunity to read in draft the judgment of Leeming JA. Reference to Unger arose in the course of oral submissions by Mr Wendler on behalf of the applicant. The Crown did not rely upon Unger but based its submissions on the extension of time issue upon more general authorities: R v Lawrence [1980] 1 NSWLR 122 at 148; Edwards v R [2009] NSWCCA 199 at [8]; and Arja v R [2010] NSWCCA 190 at [4].

1. In relation to the effect of Muldrock upon sentencing for standard non-parole period offences, the Crown confined its reliance to decisions of this Court dealing with that specific issue: for example, Butler v R [2012] NSWCCA 23. The point raised in the judgment of Leeming JA, with reference to Unger, was not raised in Butler; nor has it been raised in any of the many other cases in this Court concerned with asserted "Muldrock error" in appeals out of time.

1. I prefer to express no concluded view on the Unger point as the Court has not had the benefit of full argument and, in any event, it is unnecessary to do so for the resolution of this application.

Conclusion

1. Neither of the two proposed grounds of appeal should be upheld. In any event, no lesser sentence was warranted in all of the circumstances of the case. The application to extend time should be refused.

Order

1. I propose the following order:

Extension of time in which to file a notice of application for leave to appeal against sentence is refused.

1. BUTTON J: I agree with R A Hulme J.

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Decision last updated: 13 September 2013