NG v The King

[2024] NSWCCA 142

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

NG v R [2024] NSWCCA 142

Hearing dates:

12 July 2024

Date of orders:

02 August 2024

Decision date:

02 August 2024

Before:

Adamson JA at [1];
Wilson J at [2];
Faulkner J at [69]

Decision:

(1) Extend the time in which to file the application for leave to appeal to 9 May 2024;

(2) Grant leave to appeal;

(3) Dismiss the appeal.

Catchwords:

CRIME – appeal against sentence – child sexual offences and sexual assault offence – where applicant sentenced for other historic and non-historic child sex offences in 2016 and subject offences pre and post-dated those offences –whether sentence judge erred in findings of objective seriousness – whether principle of totality breached by superimposing new sentence on existing sentence – whether aggregate sentence is manifestly excessive

CRIME – appeal against sentence – leave to appeal out of time sought – delay due to COVID pandemic

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA

Crimes Act 1900 (NSW), ss 61I, 61M, 66A, 578A

Cases Cited:

BM v R [2023] NSWCCA 68

Bravo v R [2015] NSWCCA 302

Faehringer v R [2017] NSWCCA 248

Higgins v R [2020] NSWCCA 169

JG v R [2023] NSWCCA 33

Martellotta v R [2021] NSWCCA 168

McDowall v R [2019] NSWCCA 29

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Mills v R [2017] NSWCCA 87

Mulato v R [2006] NSWCCA 282

NG v R [2017] NSWCCA 161

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

R v CTG [2017] NSWCCA 163

R v MAK, R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

Thorp v R [2022] NSWCCA 180

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Category:

Principal judgment

Parties:

NG (Applicant)
Rex (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00135037

Publication restriction:

Publication of any matter which could identify the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 August 2021

Before:

Culver DCJ

File Number(s):

2020/00135037

JUDGMENT

1. ADAMSON JA: I agree with Wilson J.

2. WILSON J: The applicant, NG, pleaded guilty on 22 April 2021 to three sexual assault offences before the Central Local Court and was committed to the District Court for sentence. In compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW), and to protect the victims of his earlier crimes, the applicant will be referred to by the pseudonym NG. The victims of the present offending are entitled by law to privacy, and their names have also been anonymised.

3. The offences to which the applicant pleaded guilty, two of which relate to assaults upon a child; the sequence numbers; maximum penalties and any standard non-parole period that applied at the time; and the indicative sentences announced by her Honour Judge Culver, are as follows.

Sequence	Offence	Maximum Penalty	Indicative Term
2	Aggravated indecent assault (child under 16) s 61M(1) Crimes Act 1 March 2005 to 9 April 2005 Victim: PB; aged 10 years	7 years imprisonment SNPP 5 years	3 years and 9 months imprisonment; NPP 2 years and 6 months
3	Sexual intercourse without consent s 61I Crimes Act 30 December 2002 to 2 January 2003 Victim: MR	14 years Imprisonment	4 years and 6 months imprisonment
4	Sexual intercourse with a child under 10 s 66A Crimes Act 1 December 1998 to 1 February 1999 Victim: EE; 4 years	20 years imprisonment	9 years imprisonment

4. On 20 August 2021, the applicant was sentenced by her Honour to an aggregate sentence of 14 years imprisonment, with a non-parole period (“NPP”) of 9 years. The sentence commenced on 17 February 2022. The NPP expires on 16 February 2031, whilst the total term will end on 16 February 2036. At the time of sentence, the applicant was serving an existing aggregate sentence of imprisonment of 12 years and 7 months with a NPP of 9 years and 6 months. That sentence commenced on 17 February 2016, with the NPP expiring on 16 August 2025 and the aggregate sentence expiring on 16 September 2028.

5. If granted an extension of time, and leave, the applicant seeks to advance three grounds:

1. Her Honour erred in determining the objective seriousness of each offence.

2. The aggregate sentence imposed was manifestly excessive.

3. The imposing of the ‘new’ sentence on the ‘existing’ sentence breached the principle of totality.

The proceedings before the District Court

6. The sentence hearing came before her Honour on 20 August 2023.

The Crown Case on Sentence

7. The Crown case consisted of a statement of agreed facts, the applicant’s criminal and custodial histories, and a victim impact statement prepared by PB. It also included the Court of Criminal Appeal judgment relating to the applicant’s previous offences, NG v R [2017] NSWCCA 161.

8. The statement of facts was agreed upon by the parties and signed by the applicant on 22 April 2021. It was tendered in the Crown case.

9. All three occasions of offending occurred at the same property at Bringelly, which belonged to the applicant’s mother, but which housed the applicant, his sister and her partner and, occasionally, friends, family and neighbours. It was a large property with a swimming pool, barbeque area, and outbuildings, and many animals were kept there.

10. The first offence in time (sequence 4, sexual intercourse with a child under 10 years) was committed against EE, the applicant’s young cousin, and occurred in the Christmas holidays of 1998 when EE was 4 years old. EE and her family were staying at the Bringelly house for the summer. On this particular day they planned to spend the day in the pool. EE and the applicant arrived at the pool before other members of the household. The applicant and EE played in the shallow end of the pool, with the applicant lifting EE up by placing one hand underneath her bottom and one hand supporting her torso, throwing her into the air and into the water.

11. In the midst of this activity, when the applicant was partially holding EE under the water, the applicant slid his finger under EE’s swimmer bottoms and into her vagina, keeping it there for some seconds. EE felt that there was more than one finger moving inside her vagina during this time. What was done to her felt unusual and uncomfortable. The incident ended when the applicant again threw EE into the air, after which others began to gather at the pool.

12. EE did not tell anyone about this until much later when, in 2009 or 2010, she told her mother that the applicant had interfered with her. In 2016 EE advised the police about the assault, but she did not make a formal statement until 2020, when she became aware of the childhood assault committed against PB by the applicant.

13. The second offence (sequence 3, an offence of sexual intercourse without consent) was committed against MR. MR is connected to the applicant by family marriages. She, her husband, and their five year old daughter were staying at the Bringelly property over summer in 2002. After a short holiday, MR’s husband had to leave the property to return to work; MR and her daughter stayed on. On a night on or shortly after 30 December 2002, MR and her daughter retired to bed in a bedroom at the house. Sometime later MR awoke to find the applicant kneeling at the end of the bed. MR asked what the applicant what he was doing, and he replied, “I am just covering you two up.” MR went back to sleep but was again awoken by the applicant who was at that time laying behind her with his hand reaching over to her crotch area. MR felt the applicant’s finger enter her vagina; his knee was behind her with the applicant using his leg trying to open MR’s legs. MR used her elbow to push the applicant off her and he fell off the bed. MR jumped out of bed. She saw the applicant, with no shirt on, standing in the bedroom trying to pull his pants up. She told the applicant to get out of her room and, after he had gone, she ran to a female occupant of the house and told her what had happened. MR telephoned her husband who returned to the property to collect his wife and daughter.

14. The third offence in time (sequence 2, aggravated indecent assault) was committed against PB, who was 10 years old at the time. PB attended school, and was close friends with, EE (the victim of sequence 4). The girls often spent time together, sometimes at the Bringelly property. At around that time PB’s brother was ill with leukaemia, and the family home was a sad and distressing environment.

15. On 2 April 2005, PB and EE were staying in the spare bedroom of the applicant’s home for the weekend. The children liked to come to the property to see the animals that lived there, and it gave PB an opportunity to be away from the strain at home. The applicant’s sister and her partner were also at the property on this weekend.

16. After dinner, when the applicant’s sister and her partner were in the kitchen cleaning up, the applicant entered the lounge room and joined PB and EE, who were watching television. Each girl was laying down on a separate couch, with their heads in close proximity. The applicant approached the couch that PB was laying on and she pulled her legs up to her chest to make room for him to sit down. The applicant said, “No, no it’s ok. You can put your legs on me”. PB stretched her legs out again. Resting his hand on the lower part of PB’s right leg, the applicant began to stroke and rub PB’s leg, before gradually moving his hand higher along her leg to her upper thigh. PB was wearing silk boxer shorts at the time and the applicant moved his hand through the leg of the shorts and began to touch and rub the outside of PB’s vaginal area, moving his fingers back and forwards against her genitals a number of times. Initially frozen with fear and unable to move, PB was still until she was able to make a sudden movement which caused the applicant stop. PB was then able to get up; she went to the spare bedroom.

17. The following day PB and EE returned home. PB did not initially say anything about what had happened because she felt her parents were fully occupied with the care of her brother. When her mother found PB the following weekend sitting on the ground at her home crying, she told her mother what the applicant had done. PB did not make a formal complaint to police until 2020.

18. The applicant was arrested for these offences on 6 May 2020. He refused to be interviewed.

19. Setting aside a drink driving offence from 1999 and a minor drugs charge from 2004, the applicant’s criminal history began in 2016 with his convictions for two sets of sexual offending against children. Dating from the period 1975 – 1978 were convictions for 3 counts of assault female under 16 years and commit act of indecency, and 2 counts of commit act of indecency on a female under 16 years. From the period 2011 – 2014 were convictions for offences of sexual intercourse with a child between 10 and 14 years, and sexual intercourse with a child under 10 years. The offences were dealt with together by the District Court. The penalty imposed at first instance was later varied by this Court, per Johnson J, Beech-Jones J (as his Honour then was), and Fagan J, to an aggregate sentence of imprisonment of 12 years and 7 months comprising a non-parole period of 9 years and 6 months.

20. A victim impact statement (“VIS”) from PB was also received by the sentencing court. PB told the court of the profoundly negative impact upon her life that the assault upon her had. She said that, because of what she experienced at the applicant’s hands, she suffered from post-traumatic stress disorder, dysregulated emotions, chronic depression, and anxiety. In her teens, PB became suicidal and began to self-harm. She continues to use negative coping mechanisms to help her deal with the trauma of the assault, despite the assistance of therapists. She remains withdrawn and fearful, and is anxious and untrusting around others.

The Subjective Case

21. In support of his case the applicant affirmed an affidavit on 19 August 2021 in which he deposed that, at the time of the offending he had been using drugs daily and believed that his drug use had contributed to the offending. He said that he regretted the offences and understood that he had breached the trust of the victims and their families. He expressed a wish to apologise to them and said that he struggled daily with his grief and regret for his conduct.

22. The applicant said that, in custody, he was very restricted in his activities and, because of the nature of his offences, he felt constantly unsafe. He had been kicked and punched in the past. The applicant said that he had undertaken a number of vocational and educative courses, such as Work Safety, Hospitality, EQUIPS Foundation, EQUIPS Addiction, and RUSH. He has expressed willingness to undertake a sex offender programme when it becomes available to him. He attends chapel regularly. The applicant said that he had accepted suggestions from forensic psychiatrist Dr Andrew Ellis and, having also learnt useful strategies from the courses he had undertaken, he planned to be a better person in the future, and live a quiet life. He was prepared to take anti-libidinal medication if that was deemed necessary.

23. The applicant also gave oral evidence before the sentencing court on 20 August 2021. He said that in the past he had used cannabis, heroin, LSD, cocaine and ecstasy, having begun to use drugs at the age of about 15 years. The only reason the applicant could give for taking up drugs was that he “liked [his] drugs”. He said that he was not using any drugs in custody, even though they were accessible to him.

24. The applicant said that he had some limited contact with his sister, but he had no contact with other family, including with his daughter, whom he had not seen since about 2015. In custody the applicant said that he was held on protection, although his conditions had improved during the pandemic because older inmates were separated from younger prisoners and housed together. There had been periods of “lock-down” during the pandemic, with prisoners confined to their own section of the prison. As at the date of sentence the applicant had access to an oval area for exercise. Of the offences he was to be sentenced for the applicant said:

“I feel pretty bad about it. I’m really, really sorry that I’ve hurt these people. I really don’t like myself. I’m a bit of a piece of shit for what I’ve done. I find it hard to really like myself that much and I’m really very sorry that I’ve hurt them. I’ve hurt their families. I just struggle with that some days just with myself. I’m really, really sorry for what I’ve done to them and her reading her impact statement I’m – I understand and I really understanding like what you’ve probably gone through but not as much as yeah she explains and I’m really sorry for that and sorry for all of you. If I can do anything… (not transcribable)… really very sorry.”

25. The applicant said that, having already served part of his existing sentence he had been left feeling “pretty devastated” when charged with the present set of offences. He said that he had been looking forward to his release and “enjoying the rest of [his] life” but knew that would no longer occur. In cross-examination the applicant acknowledged that his crimes had been committed for his own sexual gratification, although he maintained that, because of his use of ecstasy and cocaine at the relevant time, he had not really thought about his conduct as wrong.

26. The report from Dr Ellis that the applicant referred to in his evidence to the sentencing court was dated 8 August 2021. The doctor assessed the applicant on 6 August 2021 via an audio-visual link over a two hour period, taking a history from him and discussing his offending behaviour with him. Dr Ellis noted that the applicant suffered from anxiety and depression, as well as having emphysema. An earlier diagnosis of paedophilia was recorded.

27. The applicant said that he was raised in a stable and positive home, being educated to age 16 and thereafter working consistently in various capacities, including as a manager of pubs and clubs. He was in receipt of the disability pension prior to incarceration for the 2016 convictions. He told Dr Ellis that he had been sexually touched by an adult male when he was 6 years old, and sexually assaulted by his drug dealer when he was 16 years. He had used drugs from his teenage years. The applicant did not seek to minimise his crimes and, of his sexual interest in children, Dr Ellis reported:

“In regard [to] sexual attraction to children he said “there must be something”. He says that he does not understand why he engaged in the offending behaviour. He said ‘it’s not an urge, it’s sort of sexual, but sort of not, I can’t explain it’. He said ‘maybe in the back of my brain there is something ticking’. He related this to his report of being abused at the age of six and in his teenage years.”

28. Dr Ellis concluded that the relevant diagnoses were the paraphilic disorder paedophilia, and a substance abuse disorder. The applicant had little understanding of the motivation for his offending conduct, with his behaviour consistent with a motivation of sexual gratification. Probably because of the applicant’s age – 63 years at the time of the consultation – Dr Ellis considered him as presenting a low risk of reoffending. The doctor thought that the applicant would benefit from anti-libidinal medication and noted that he was open to such treatment. The applicant was noted to be more vulnerable in the prison population because of his age, psychological problems, and the nature of the offences of which he had been convicted, although Dr Ellis observed that the applicant had adjusted well to prison life and held the trusted position of sweeper.

29. A further report from Dr Ellis dated 10 August 2021 was also before the sentencing court in which he commented on two specific areas raised with him by the applicant’s legal representatives. He observed that there was no causal link between the applicant’s experience of having been sexually assaulted as a child; and that the applicant’s risk of re-offending, if he accepted treatment, was likely to be low.

30. Evidence confirming the applicant’s attendance at and completion of a number of vocational and other courses whilst in custody was also before the Court.

The Remarks on Sentence

31. Having heard the evidence and submissions her Honour proceeded immediately to deliver judgment ex tempore. She outlined the charges against the applicant and set out the relevant maximum penalties, also observing that s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to the sentence proceedings. Her Honour accepted the facts as agreed between the parties. She referred to the contents of PB’s VIS and observed that it was expressive of the type of long term damage which the courts now understood was commonly caused by child sexual assault. Her Honour said:

“The community rightly reviles offences of this nature, as noted by the Crown in their written submissions. General deterrence is typically of great significance in sentencing offenders for these sorts of offences because of the very great harm perpetrated, particularly on children, but also adult victims of sexual assault. This is particularly so in cases where an offender was in a position of trust to the victim. Children by nature can be very vulnerable. It is often very hard for children to speak out, as described eloquently by PB. What she described was very readily understandable and is typically experienced in these sorts of offences.”

32. Her Honour noted that the offence against EE fell within the mid-range level of objective gravity, having regard to EE’s very young age, her isolation and vulnerability when in the pool alone with the applicant, the breach of trust involved, as well as the opportunistic nature of the offending. With respect to the offence against MR, her Honour concluded that the offence was below the mid-range of gravity but not at the low range, given that MR had been vulnerable in sleep and the applicant had commenced the assault upon her as she slept. Of the assault upon PB the sentencing judge concluded that it fell at the mid-range of gravity, noting that, at age 10, PB was significantly below the upper age range caught by the offence of 16 years; the assault involved skin to skin contact with her genital area; upon a child isolated from her family and under the applicant’s roof; in circumstances where there was a breach of trust.

33. The sentencing judge gave careful consideration to the subjective case and accepted that the applicant would find a custodial environment more onerous than most prisoners, because of his age, anxiety and depression, the emphysema from which he suffers, and the nature of the offences he committed. She found that he had expressed genuine remorse in his evidence before the court, although the applicant’s prospects of rehabilitation, bearing in mind his limited insight, were held to be guarded, with “further work to be done”.

34. Her Honour referred at length to the sentence the applicant was then serving, setting out its terms but also the facts of the offences with respect to which it was imposed, and the matters taken into consideration by the sentencing court. She referred also to the subsequent decision of this Court in 2017 following the challenge to the sentence mounted by the applicant, and the features taken into account when the sentencing discretion was re-exercised. Her Honour observed:

“The aggregate sentence was said to have regard to the principle of totality and the substantial level of notional accumulation, having regard to the fact that there are different victims and different offences, together with other factors relevant to the determination of the effective minimum term, including the subjective circumstances of the offender.

The aggregate sentence overall, as I said, was comprised of a head sentence of 12 years and seven months with a non-parole period of nine years and six months to date from 17 February 2016.

What becomes apparent when considering those offences is that now this Court is sentencing the offender for offences that were committed in between the two groups of offences dealt with by the Court of Criminal Appeal on appeal.”

35. The sentencing judge was alert to the issue of delay, leading as it did to the applicant facing separate sentence proceedings for similar courses of offending conduct. She observed:

“[…] what is required of the Court is to consider the chronology. I have spoken of these offences being committed in between the two groups of offences for which the offender has already been sentenced. What occurred then was that the offender pleaded guilty to those other matters and was sentenced in the District Court on 19 August 2016. His appeal was then finalised on 5 July 2017. The offender was arrested for the present matters as stated on 6 May 2020. He gave evidence that when he was arrested with these further matters, he was devastated because in his mind, he had the release date presumably of 16 August 2025 for the expiration of the non-parole period of the sentence he is currently serving. He said that in effect, realising that these other matters were yet to be dealt with, he felt that his available balance of life was effectively going to be taken up with a further sentence.”

36. Her Honour continued:

“I do accept that upon being arrested in 2020, whilst he was already serving a significant sentence for similar offences committed both before and after these offences, there would have been a disruption to his state of mind, particularly given his background experience of anxiety and depression. That is a matter that I will take into account in the overall instinctive synthesis and it will be reflected on how best to sentence the offender with a view also to his rehabilitation.

The delay will feature, therefore, within the contemplation of special circumstances together also with principles of totality.

[…]

The Court must ensure that the overall sentencing result for the three offences is proportionate to the totality of criminality. Additionally, the Court must ensure, given the offender is currently serving a sentence for a number of offences, that the overall sentence, including the current sentence, is proportionate to the totality of criminality. Ordinarily, that is reflected by a degree of some concurrency as noted by the Crown.”

37. The need to avoid a “crushing sentence” was noted, with her Honour concluding that:

“Additionally, the fact of there being considerations of totality in structuring this sentencing outcome in the context of his other sentences will contribute to a finding of special circumstances. The Court will aim to avoid institutionalisation of the offender such that the Court will avoid there being a dynamic that is counterproductive to rehabilitation and reintegration into the community. However, the Court must ensure that the finding of special circumstances does not result in a period of custody that is wholly inadequate in the circumstances of the criminality.”

38. Having set out the indicative terms and announced sentence as noted above her Honour concluded:

“In other words, the overall sentence when added to his current sentence is that the offender is serving an overall period in custody of 15 years with an overall period eligible on parole of five years and that was intended by me.”

The Application to this Court

Ground 1

39. By this proposed ground the applicant contends that the sentencing judge was in error in her assessment of the objective gravity of each of the three offences before the court. He contends that it was not reasonably open to her Honour to regard sequences 2 and 4 as falling at the “mid-range” of gravity, and sequence 3 as “below mid-range”.

40. Citing Mulato v R [2006] NSWCCA 282, at [37], the applicant acknowledges that the task of challenging assessments of this nature is a difficult one because of the breadth of the discretion that reposes in sentencing judges to undertake this process, and the reluctance that attaches to appellate intervention, with this Court “very slow to determine such matters for itself or to set aside the judgment made by a first instance judge”. His task is made even more formidable where the challenge is to the assessment as expressed by reference to a place in a range of gravity.

41. The applicant argues that each of the three offences were isolated, with no repetitive offending committed against any of the individual victims, and they were of short duration. He also points to the absence of features, such as threats, violence, or humiliation, to argue that his crimes must necessarily be less serious than offences in which these features are present. The applicant emphasised that he advanced the argument as one focused only on the gravity of his crimes relative to those assessed as more serious, rather than as an argument of the nature regularly rejected in this Court: see Faehringer v R [2017] NSWCCA 248 at [49]-[50]; R v CTG [2017] NSWCCA 163 at [60]-[63]; Bravo v R [2015] NSWCCA 302 at [45]; Mills v R [2017] NSWCCA 87 at [57]; BM v R [2023] NSWCCA 68 at [46].

42. Having considered the careful attention given by the sentencing judge to the features relevant to an assessment of the gravity of each of the applicant’s crimes, I am not persuaded that she was in error in any of her conclusions, or that they were not reasonably open to her on the evidence.

43. What is required of a sentencing judge is to fully consider and identify the facts, matters and circumstances that are of relevance to the assessment of the gravity of the offence. In the applicant’s case, her Honour undertook precisely that process, prefacing her consideration of the issue by correctly noting:

“It is necessary for the Court in any given sentencing exercise to consider the particular circumstances of the case to understand where the particular severity falls.

[…] [W]e have the experience of seeing a vast range of matters come before the Court, all of them serious, and we are given the responsibility to consider within the range of seriousness where a particular case falls without extending to matters that would take the offence to a different, even more serious offence category.”

44. With respect to the offence against EE, sequence 4, her Honour referred to:

1. The breach of trust involved, in that EE was related to the applicant and was in his family home through that connection;

2. EE was 4 years of age, being a very young child considerably below the statutory range that ends “under the age of ten years”;

3. She was “powerless to escape” or call for help in that she was alone with the applicant in a pool at the time of the offence, and was isolated from others, as well as being isolated geographically, the evidence being that the pool was hidden to an extent from the house or remainder of the property;

4. The fact that the applicant held EE partially underwater to facilitate the assault upon her made all the greater the inability of EE to escape;

5. The act of digital penetration was not static, with EE made uncomfortable by the feeling of movement inside her vagina;

6. The applicant’s motive was to obtain sexual gratification;

7. The offence was of short duration but not fleeting or momentary;

8. It was committed opportunistically, without planning; and

9. No force was used.

45. With respect to sequence 3, the offence against MR, her Honour considered:

1. MR was a guest in the applicant’s home;

2. She was asleep at the time of the offending, being woken by the act;

3. At the time of the assault MR’s 5 year old child was also asleep with MR, pointing to the brazen nature of the offending;

4. The assault involved an act of digital-vaginal intercourse;

5. It could not be said that the offence was planned but neither was it open to conclude that it was spontaneous; and

6. Because MR took immediate action to elbow the applicant away the offence was of short duration.

46. With respect to sequence 2, the offence against PB, her Honour noted that:

1. PB was significantly under 16 years of age, being 10 years old at the time of the offending with her young age speaking to her vulnerability;

2. The assault involved skin to skin contact that was preceded by the applicant stroking PB’s leg as he moved his hand to her upper thigh;

3. The area touched by the applicant was directly on the outside of PB’s vagina, with the applicant moving his fingers back and forwards across the genital area;

4. The offence was committed in the presence of EE, pointing to its brazenness;

5. Because PB was staying in the applicant’s home as a friend of EE, and she was without any immediate family member to protect and support her, she was particularly vulnerable;

6. There was a breach of trust because the applicant, in encouraging PB to put her legs across him as he sat down, induced her to think that she was safe in that position; and

7. The offence was committed opportunistically.

47. Each of the features considered by the sentencing judge was of direct relevance to the assessment of their respective gravity. There was no relevant feature that her Honour failed to consider. That her Honour positioned the offences within a spectrum of seriousness with which the applicant does not agree, or which differed slightly to the categorisation he submitted was appropriate, does not make the categories employed by the sentencing judge wrong. As this Court has frequently observed, the language of a place in a range is imprecise, and there is little to distinguish between an offence said to fall at the mid-range with one that is placed just or even somewhat below that point. See the discussion on this topic in JG v R [2023] NSWCCA 33, at [99]-[103], citing McDowall v R [2019] NSWCCA 29 at [35]-[37]; Higgins v R [2020] NSWCCA 169, at [78]; Thorp v R [2022] NSWCCA 180, at [86]; Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266, at [82]; and Martellotta v R [2021] NSWCCA 168, at [65]-[66], among others.

48. In short, the sentencing judge took into account all relevant features and, in my conclusion, her findings with respect to the gravity of the offences were reasonably open to her.

49. This ground cannot be made good.

Ground 3

50. Since this ground is relied upon to some extent with respect to the complaint of manifest excess, it is sensible to consider it before turning to consider ground 2. The applicant contends that the sentence imposed upon him breached the principle of totality because it was both too long and commenced too late with respect to the sentence the applicant was already serving when sentence was imposed for these matters. He points to the overall aggregate sentence he must serve, one of 20 years imprisonment with an overall aggregate NPP of 15 years as too harsh and excessive to the total criminality of the various offences dating from the periods 1975 – 1978, and 2011 – 2014 (dealt with in 2016); and 1998 – 1999, 2002 – 2003, and 2005 (dealt with by her Honour). The applicant argues that a greater degree of concurrence between the existing sentence and that imposed by her Honour was called for, because of the similarities in offending, which were a “continuing course of conduct”.

51. That contention cannot be accepted.

52. The principles that apply in circumstances when an offender who is serving an existing sentence is sentenced for further offending are well known; what is required is that the sentence imposed is just and appropriate to the whole. The frequently quoted statement from Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 provides guidance as to the application of the principle:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

53. In the applicant’s case, the first point to be made is that her Honour was well aware of the requirement for the sentence to meet the totality principle. She referred to the principle in the context of the sentence the applicant was already serving (extracted at [34]-[37] above) and carefully set out the salient facts of the earlier offending. Her Honour also discussed the 2017 decision of this Court in NG v R, and noted the matters considered by the Court when re-exercising the sentencing discretion. She specifically referred to the need to avoid a crushing sentence, whilst still imposing a sentence adequate to reflect the criminality involved. She said:

“Furthermore, the offender is currently serving a sentence for the matters which I outlined from the Court of Criminal Appeal’s decision. What that means is that the Court has to be mindful in accordance with decisions such as Pearce and Cahyadi that each offence must receive a sentence proportionate to the totality of its circumstances and proportionate to its criminality.

To the extent that a sentence for one offence can reflect and accommodate the concerns for another offence, then the Court ought consider a degree of concurrency or overlap between the sentences. To the extent that the offences are separate and bear their own individual considerations, then ordinarily the Court would consider a degree of accumulation.

The Court must ensure that the overall sentencing result for the three offences is proportionate to the totality of criminality. Additionally, the Court must ensure, given the offender is currently serving a sentence for a number of offences, that the overall sentence, including the current sentence is proportionate to the totality of criminality. Ordinarily, that is reflected by a degree of some concurrency as noted by the Crown.”

54. Issues of totality cannot be determined by mathematical formulae, or by reference to some objective scale of concurrency and accumulation. Ultimately, these are matters for judgment, giving consideration to all relevant features. The totality principle does not mean that long sentences can never be imposed; to the contrary, substantial sentences will sometimes be called for where the offending is grave and the number of offences significant. There can after all be no “discount” for frequent offenders, as was observed in R v  MAK, R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [18]:

“A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.”

55. Her Honour undertook the careful exercise required in assessing the extent that concurrency with the existing sentence was possible, and allowed 3 years and 6 months concurrent with the NPP of the existing term. That allowance recognised the commonality of some features of the applicant’s case, without failing to comprehend the criminality of the offences or to recognise the harm done to individual victims in what was quite separate offending. Her Honour had to undertake a difficult sentencing exercise; it was not one that resulted in error in my conclusion.

56. This ground has not been made good.

Ground 2

57. By this ground the applicant contends that the sentence imposed upon him was manifestly excessive. He points to a series of 29 features, objective and subjective (all of which were discussed by the sentencing judge), and submits that, having regard to them, both the indicative terms announced, and the aggregate sentence were unfair.

58. As with ground 1, the applicant has an onerous task. There is an acknowledged range of sentence that can properly apply to an offence and an offender, and it is for the applicant to establish that the sentence falls outside that range, in circumstances where sentencing judges are allowed a degree of flexibility consistent with the observance of relevant principles: Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, at [443].

59. Insofar as the applicant relies upon grounds 1 and 3 to contribute to the weight of his arguments in support of a claim of manifest excess, I have already concluded that those grounds cannot be made good. His claim is diminished to that extent.

60. An important guide in assessing claims of manifest excess is the maximum penalty applicable for the offence. The offence against EE is one which carried at the time a term of 20 years imprisonment; the offence against MR carries 14 years; whilst the offence against PB carried at the time 7 years imprisonment with a standard non-parole period of 5 years. The offences were all crimes with some factual features that elevated their seriousness, including a breach of trust with respect to the offences against EE and PB and, for the offence against MR, the exploitation of the vulnerability of MR in sleep. The only motivation was sexual gratification. There was no real commonality in the crimes, each being separate in time and involving a different victim, other than to the extent that the subjective case was relevant to that assessment. The latter was of minimal significance, since her Honour did not find (and nor was it suggested she should) that there was any aspect of the applicant’s circumstances or mental health that had a causal connection to his offending history.

57. The applicant is a serial sex offender who has assaulted multiple victims over decades for no better reason than the satisfaction of his own sexual urges. The harm he has done has been great and there is little in his subjective case that called for any real amelioration of penalty. An aggregate NPP of 9 years with a total term of 14 years cannot be concluded to be unjust in all the circumstances.

The Question of an Extension of Time

62. The applicant did not file a Notice of Intention to Appeal.

63. A Notice of Appeal was filed on behalf of the applicant on 9 May 2024, two years and eight months after the applicant was sentenced. This was accompanied by Annexure B, an application for leave to file a notice of appeal after the expiry of the filing period, which itself was accompanied by an affidavit of the applicant dated 7 May 2024, and an affidavit of Bryan Dowe, solicitor of Legal Aid NSW, dated 30 April 2024.

64. In his affidavit, the applicant refers to having been subject to COVID-19 lockdowns from 22 September 2021 to 5 May 2022 in which he was “in [his] cell many of those days without access to telephones”. Also owing to COVID-19 lockdowns, the applicant states he spent the period from 16 April 2022 to 15 May 2022 in his cell “24 hours a day”. He indicates he was suffering from anxiety and depression. The applicant states that he called Law Access in 2022; and the Prisoners Legal Service sometime after that and “eventually” a conference was arranged.

65. Mr Dowe deposed that an application for legal aid for the applicant was not received until 6 February 2023. Mr Dowe states that requests were made in May 2023 for relevant material and that this was not received in whole until 30 January 2024.

66. Neither affidavit fully explains the delay in prosecuting this application. Whilst it is accepted that the COVID-19 pandemic made the circumstances of imprisonment much more difficult for inmates, it must be open to doubt that it made it impossible to file a Notice of Intention. The Court’s ordinary experience is contrary to that. There is also a period of time entirely unexplained between the applicant’s request to the Legal Aid Commission for assistance, and any steps being taken to obtain the relevant material. Any failure attaching to that procedure cannot, however, be fairly attributed to the applicant personally.

67. Despite the inadequacies in the explanation for delay, the overall sentence that the applicant must serve is a stern one, and I would for that reason extend the time in which to file the application for leave to appeal to 9 May 2024.

Conclusion

68. The orders I propose are:

1. Extend the time in which to file the application for leave to appeal to 9 May 2024;

2. Grant leave to appeal;

3. Dismiss the appeal.

69. FAULKNER J: I agree with Wilson J.

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Decision last updated: 02 August 2024