NT v Regina Non-publication order - [2007] NSWCCA 143

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: NT v Regina Non-publication order [2007] NSWCCA 143

HEARING DATE(S): 24 April 2007

JUDGMENT DATE:
24 May 2007

JUDGMENT OF: James J at 1; Rothman J at 2; Harrison J at 7

DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - five counts aggravated indecent assault, two counts aggravated sexual assault, one count attempted aggravated sexual assault - offender step father of victim - victim 10 and 11 years of age at time of offences - whether overall sentence manifestly excessive taking into account applicant's early plea of guilty - whether sentencing outcome sufficiently reflective of the finding of exceptional features identified by sentencing judge

LEGISLATION CITED: Crimes Act 1900 - ss 61(M)(1), 61(J)(1),
Crimes (Sentencing Procedure) Act 1999 - ss 21A(1), (2) & (3)

CASES CITED: Pearce v The Queen (1988) 194 CLR 610
R v AD [2005] NSWCCA 208
R v BJW (2000) 112 A Crim R 1
R v Dent (Court of Criminal Appeal, 14 March 1991, unreported)
R v Doherty [2006] NSWCCA 133
R v Doolan [2006] NSWCCA 29
R v Kennedy [2000] NSWCCA 527
R v Hopkins [2004] NSWCCA 105
R v Reyes [2005] NSWCCA 218
R v Sangalang [2005] NSWCCA 171
R v Simpson (2001) 53 NSWLR 704
R v Slack [2004] NSWCCA 128
R v Thomson and Houlton (2000) 49 NSWLR 383
R v TV [2006] NSWCCA 174
R v Way (2004) 60 NSWLR 168

PARTIES: NT (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/696

COUNSEL: C Loukas (Applicant)
J Dwyer (Crown)

SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of New South Wales (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0063; 06/61/0553

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 25 August 2006 (date of sentence)

- 18 -

2007/696

JAMES J
ROTHMAN J
HARRISON J

NT V REGINA

Judgment

1 JAMES J: I agree with Harrison J.

2 ROTHMAN J: I have had the advantage of reading the reasons for judgment of Harrison J and I generally agree with those reasons. I agree with the orders proposed by his Honour.

3 His Honour refers to the sentencing judge’s remarks on sentence and to the fact that authority reveals that cases of sexual assault upon young children are properly to be regarded as crimes of the utmost seriousness.

4 The relative seriousness of a criminal offence, including sexual assault, compared with other criminal offences is a matter determined by the legislature. It is an unenviable task imposed upon sentencing judges, even for those offences that are themselves repulsive, to determine where the particular offence committed fits within the range of criminality described by the offence in question. Thus, it is a sentencing judge’s task to determine whether a particular sexual assault is mid range, worst case or some other category within the range of sexual assaults covered by the particular offence charged.

5 This is a sometimes difficult task and requires an evaluation which, in one sense, disregards the repugnance that one would generally feel for offences of this kind. It looks, rather, at the relative criminality within the range of offences of this kind that are capable of being committed.

6 In making the assessment that he did, the sentencing judge discloses no error and I agree with the orders proposed by Harrison J.

7 HARRISON J: The applicant was committed for sentence to the District Court of New South Wales on five charges of aggravated indecent assault under s 61M(1) of the Crimes Act 1900, two charges of aggravated sexual assault and one charge of attempted aggravated sexual assault under s 61J(1) of the Crimes Act 1900.

8 The victim of these offences was the applicant's stepdaughter. Tendered in the sentencing proceedings, without objection, was a statement of facts. The statement set out a brief description of the circumstances giving rise to the offences. They were as follows: -

Aggravated Indecent Assault (Seq 1)
Between 1 June 2005 and 31 July 2005, the applicant had moved his family from Queensland to Wentworth in New South Wales. An incident occurred soon after the family moved into their new home. The applicant and the child were situated next to each other on a mattress in the lounge area. The applicant removed the child's pants and began fondling her vagina with his hand. A short time later he stopped and put her pants back on. The child was 10 years old at the time.

Aggravated Indecent Assault (Seq 2)
On the night of 4 October 2005, the child and the applicant were lying on the mattress on the floor of the master bedroom of the family home. Other members of the family were also in the room. In the early hours of the morning, the applicant fondled the child's shoulders and breasts on the outside of her clothes for a short time before falling asleep. The child was 11 years old at the time.

Aggravated Indecent Assault and Aggravated Sexual Assault (Seq 3 & 4)
During the night of 5 October 2005, the child was in her bedroom. The applicant came into the room, positioned himself naked on the bed and removed the child's clothes. He lay down and made the child straddle him. The applicant began rubbing his penis against the child's vagina. The child stated that the applicant attempted to put his penis into her vagina although he did not penetrate. The child was 11 years old the time.

Aggravated Indecent Assault (Seq 7 & 8)
Sometime late in the evening, the applicant began caressing the child's back and towards the bottom. The applicant fondled the child's bottom inside her underpants. A short time later the applicant fondled the child's vagina with his fingers.

Aggravated Sexual Assault (Seq 5)
The applicant then took off the child's underpants and put his head between her legs and performed cunnilingus on the child for a short time.

9 The applicant pleaded guilty. On 25 August 2006 he was convicted and sentenced as follows: -

9.1 With respect to the charge, sequence number 1, he was sentenced to a fixed term of imprisonment of 12 months commencing on 25 August 2006 and expiring on 24 August 2007.

9.2 With respect to the charge, sequence number 2, he was sentenced to a fixed term of imprisonment of 9 months commencing on 25 February 2007 and expiring on 24 November 2007.

9.3 With respect to the charge, sequence number 3, he was sentenced to a fixed term of imprisonment of 18 months commencing on 25 August 2007 and expiring on 24 February 2009.

9.4 With respect to the charge, sequence number 4, he was sentenced to a fixed term of imprisonment of 3 years commencing on 25 August 2007 and expiring on 24 August 2010. That sentence was to be served concurrently with the sentence in relation to sequence 3.

9.5 With respect to the charge, sequence number 7, he was sentenced to a fixed term of imprisonment of 9 months commencing on 25 August 2008 and expiring on 24 May 2009.

9.6 With respect to the charge, sequence number 8, he was sentenced to a fixed term of imprisonment for 12 months commencing on 25 August 2008 and expiring on 25 August 2009. That sentence was to be served concurrently with the sentence in relation to sequence number 7.

9.7 With respect to the charge, sequence number 5, he was sentenced to a fixed term of imprisonment of 3 years commencing on 25 May 2009 and expiring on 24 May 2012.

9.8 With respect to the charge, sequence number 6, he was sentenced to a non-parole period of 2 years imprisonment commencing on 25 May 2010 and expiring on 24 May 2012 and a balance of term of 4 years commencing on 25 May 2012 and expiring on 24 May 2016.

10 In the result, the effective total sentence was a sentence of 9 years and 9 months commencing on 25 August 2006 and expiring on 24 May 2016. The total effective non-parole period was 5 years and 9 months commencing on 25 August 2006 and expiring on 24 May 2012.

11 The offence of aggravated indecent assault carries a maximum penalty of 7 years imprisonment and attracts a standard non-parole period of 5 years imprisonment. The offences of aggravated sexual assault and attempted aggravated sexual assault carry a maximum penalty of 20 years imprisonment and attract a standard non-parole period of 10 years imprisonment in each case.

12 The applicant seeks leave to appeal to this Court and appeals on the single ground that his Honour's determination of the appropriate sentence was manifestly excessive.

13 The applicant was born on 25 November 1972 and was accordingly 33 years of age when sentenced. He gave evidence in the sentencing proceedings. He said he was of Samoan descent but was born in New Zealand. He was one of eight children and came to Australia with his family when he was 12 years of age. He attended high school in Sydney. His family later moved to Ipswich in Queensland where he completed his Higher School Certificate. After he left school he worked with his father managing a plastics factory. At the age of 25 he obtained work in the meat industry as a knife hand. He met his wife. At that time she had a little girl who was then aged three years and who is the victim of these offences. Subsequently the applicant and his wife had three children of their own. They married in June 2000.

14 The applicant said in evidence that his wife did not get on very well with his family and so they decided to move to Wentworth in New South Wales. There he obtained employment with Link Distribution which is a business distributing soft drinks and confectionery. When sentenced the applicant was still in that employment.

15 The applicant said that the offences came to light on 7 October 2005 when his wife telephoned him at work and told him that the victim had told her about the sexual abuse. He said in evidence that he immediately admitted the offences to his wife. He went home to find that his wife had packed his belongings and she wanted him to leave the house immediately. Before doing so the applicant wrote a letter that was tendered in the sentencing proceedings. In that letter the applicant said that he had sexually molested his stepdaughter and that he had made an agreement with his wife never to see her or any of his children again in his lifetime. He wrote that he was extremely sorry for his actions.

16 The applicant left the family home that day. He said in evidence that he felt ashamed and disgusted with himself, but at the same time that he was relieved that the abuse had been discovered. He said that whilst he was committing the offences he felt so bad he felt like committing suicide, but said he could not stop himself. The applicant gave evidence that he understood that the abuse caused a breaking down of the bond and trust between himself and his stepdaughter. He said he understood that his actions had destroyed her emotionally and mentally.

17 The applicant said that when he was a young boy of about seven years of age living in New Zealand with his family, he and his two younger brothers were the subjects of sexual abuse by a number of family members. Details of that abuse are set forth in a report from a psychologist which was tendered before the sentencing judge.

18 The applicant gave evidence that when he left the family home he moved to Mildura to live with a friend. He sought out counselling immediately which he started in October 2005. He said the saw a counsellor regularly, initially weekly but later fortnightly. He was referred to a psychologist. The applicant gave evidence that the counselling helped him to understand the nature of what he had done. He said that almost all of his wages have continued to be paid into a joint bank account with his wife for the purpose of supporting his family. He said that although he had agreed never to see the victim or his other children again, his wife had contacted him a few weeks after he moved out telling him that their three children wanted to see him. Accordingly, arrangements were made for the applicant’s wife regularly to bring their three children to Mildura to meet him. He continued to see those children but has not seen his stepdaughter since the day he moved out. He said he would not see her unless or until she made the decision that she wanted to see him.

19 A report from a psychologist, Mr Bruton, was tendered in evidence. In his report, Mr Bruton said that upon assessment the overall valuation of the applicant was that he may have been suffering from an adjustment disorder with disturbance of conduct - DSM 309.3. He said that the applicant attended at his clinic on five occasions and that rapport was easily established with him and that he answered all questions honestly although with some hesitation and embarrassment. He said that the applicant appeared remorseful about his sexualised behaviour towards his stepdaughter, and that as time progressed he appeared cognisant of the fact that he had lost his marriage and close relationship with his children.

20 Mr Bruton referred to the sexualised behaviour of the applicant during his upbringing. He suggested that the applicant was offering an excuse. However, Mr Bruton had no doubt of the fact that the applicant knew that it was against the law to do what he did to his stepdaughter. Mr Bruton spoke of the applicant's "apparent lack of emotional understanding of the effect his behaviour would have on his stepdaughter in the longer term". He spoke of the applicant's "apparent lack of empathy (a psychotic characteristic identified in the MMPI)" that was "a cause of concern".

21 The sentencing judge did not share the view expressed by Mr Bruton. In his opinion, the applicant displayed considerable emotional understanding of the effect of his behaviour upon his stepdaughter and the ramifications of it in the course of giving evidence before him. The sentencing judge said he was impressed by the applicant's evidence and by what he regarded as the empathy that he had for the victim. The sentencing judge noted that Mr Bruton had said in his report that in his opinion the applicant did not display the characteristics of a serial paedophile.

22 The sentencing judge accepted that the applicant entered pleas of guilty at the earliest opportunity. He observed that the applicant in fact admitted his guilt the moment he was first confronted with the allegations by his wife. He made full and frank admissions to the police when interviewed. The sentencing judge said that the utilitarian value of the plea of guilty was extremely high and that the applicant was entitled in those circumstances to a reduction in the sentences he would otherwise impose in the order of what he described as "a figure at the top of the range as identified by the Court of Criminal Appeal in Thomson and Houlton". His Honour does not appear to have quantified the reduction that he applied.

23 His Honour's Remarks on Sentence then went on as follows: -

24 The sentencing judge then dealt with the applicant's good character. He observed that the applicant came before him as a man without any prior convictions. Moreover, as his Honour observed, the applicant had never been before a court or in trouble with the police. His Honour observed therefore that the applicant was entitled to be sentenced as a man of prior good character. However, his Honour took into account the fact that with respect to offences of the kind before him less weight is to be given to the factor of good character. His Honour referred to R v Kennedy [2000] NSWCCA 527. His Honour observed that if an offender’s good character and high reputation have enabled him to have the opportunity to commit or to continue to commit such offences, good character might attract less weight than normal in the sentencing process.

25 His Honour noted correctly that the offences for which the applicant was charged attracted standard non-parole periods. He referred to R v Way (2004) 60 NSWLR 168 in which this Court considered the provisions of Div 1A Pt 4 of the Crimes (Sentencing Procedure) Act 1999 in which it said that in order to give those provisions practical utility, a sentencing judge must ask and answer the question, are there reasons for not imposing the standard non parole period? This Court said in that case that the question will be answered by considering first the objective seriousness of the offence and the circumstances of aggravation and mitigation which are present in the instant case, all of which apply to the particular offender as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence of s 21A(1). This Court said that by this approach the standard non-parole period could properly take its place as a reference point or benchmark or sounding board or guidepost along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as they are applicable and relevant.

26 His Honour expressed the view that nothing other than a custodial sentence should be imposed upon the applicant in relation to each of the offences for which he was to be sentenced. No submission on his behalf was made to the contrary. His Honour's Remarks on Sentence relevantly included the following passage: -

27 His Honour then described the course he proposed to take in light of the principles that guided him. He said: -

"Clearly, special circumstances are demonstrated, requiring, in my view, that there be a variation between the term of the sentence and the non-parole period. What I propose to do in sentencing the offender is to impose sentences either partly accumulated upon other sentences or wholly concurrent, but to also determine, when looking at the effective total sentence and the effective non-parole period, that a variation to the statutory ratio is reflected in the total sentences.
In sentencing the offender I must, of course, comply with the principles as set out by the High Court in Pearce . I must set an appropriate sentence for each offence and then . . . consider questions of accumulation, concurrence and totality. I must, after imposing appropriate sentences for each offence, stand back and determine whether the total sentences I impose reflect the totality of criminality".

28 After setting out details of the facts which constituted the offences with which the applicant was charged, his Honour then made the following comments: -

"Those facts disclose the commission of extremely serious offences. The seriousness of such offences is clearly reflected in the maximum penalty applicable, particularly for the offence of aggravated sexual assault which attracts a maximum penalty, as I have said, of 20 years imprisonment. All the offences are aggravated by the fact that they involve a gross breach of trust in that the victim is the offender's stepdaughter. It was the offender's responsibility as the stepfather of the victim to care for and protect her. The offender betrayed the trust that was placed in him by the community, his wife, and by the victim.
In R v BJW [2000] NSWCCA 60 Sheller JA at para 20, with respect to maximum penalties imposed by the legislature for child sexual assault offences . . . said:

"The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim . . .”

In R v Hudson (Court of Criminal Appeal, 30 July 1988, unreported at page 3) Sully and Ireland JJ with whom Spigelman CJ agreed said:

"Recognition is also given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent and the children have a right to be protected from sexual molestation within the family and that this can only be achieved by the Courts imposing sentences of a salutary nature".

At paragraph 21 of the judgment his Honour (sic) said:

"Similarly, a child under 13 or younger is virtually helpless in the family unit when sexually abused by a stepparent. All too often the child is afraid to inform upon the stepparent (see generally R v Bamford Court of Criminal Appeal, 23 July 1991, unreported). The younger the victim the more serious is the criminality (see R v PWH Court of Criminal Appeal 20 February 1992, unreported)."

29 It is submitted on behalf of the applicant by Ms Loukas of Counsel that the sentences imposed by his Honour are disproportionate in the circumstances. She submitted that the offences committed by the applicant were serious and placed him in a position where a significant sentence was required. However, Ms Loukas submitted that the overall sentence was beyond the appropriate range, taking into account the applicant's early plea of guilty and the exceptional nature of the case as found by his Honour. Ms Loukas attached to her written submissions a table, which she contended, contained examples of sentences indicative of an appropriate range. Although the sentences imposed upon other offenders following appellate review by this Court did not represent precedents, she submitted that they afford assistance as to what might be regarded as a permissible range.

30 I have had particular regard to the cases listed in the table and to the comparison between the sentences imposed for the offences described and the sentences imposed by his Honour. In my opinion, such comparisons are informative but not particularly helpful. Although a large number of cases, such as those contained in the table, provide a broad base for comparison with the present case, any insight that they produce must ultimately yield to a principled consideration of the facts of the particular case.

31 Finally, Ms Loukas submitted that what she described as "the sentencing outcome" did not sufficiently reflect the finding of exceptional features identified by the sentencing judge. She submitted that, in essence, the application for leave to appeal was based upon the proposition that a broad range of discretion, appropriate to the circumstances identified by his Honour, had been exceeded to a degree representing manifest excess.

32 The Crown submitted that, with the exception of two cases contained in the table, it related to offences committed before 1 February 2003. Accordingly, by far the largest number of cases contained in the table predated the commencement of the standard non-parole provisions in the Crimes (Sentencing Procedure) Act 1999 and could not assist in providing a range of appropriate sentences for s 61J offences committed after 1 February 2003.

33 In R v AD [2005] NSWCCA 208, the applicant sought to rely on the decision of R v Slack [2004] NSWCCA 128 which involved a s 61J offence committed before 1 February 2003 to demonstrate that the sentence imposed was manifestly excessive. The Court distinguished the objective and subjective factors in Slack and then stated, at [43]:

Slack

R v Pellew

34 In R v Sangalang [2005] NSWCCA 171 the applicant sought to demonstrate that a sentence imposed for an offence of aggravated indecent assault committed after 1 February 2003 was manifestly excessive by reference to Judicial Commission statistics for s 61M offences committed prior to 1 February 2003. Hunt AJA made the following observation, at [28] -[29]:

"Finally, the applicant has argued that, notwithstanding the judge's finding that the objective seriousness of the offence was "just below" the mid-range, the total sentence imposed falls within the upper end of the range of sentences for this offence as revealed by the sentencing statistics maintained by the Judicial Commission, and that the sentence was thus manifestly excessive.

Regina v Way

Crimes (Sentencing Procedure) Act

Regina v Pellew

Regina v Porteous

35 The Crown submits that these observations are pertinent to offences of aggravated sexual assault committed after 1 February 2003. The Crown submits that the cases in the table relied upon by the applicant are of little or no assistance for this reason alone, as well as the more general limitations to which this Court has referred in relation to reliance on comparable cases.

36 R v Hopkins [2004] NSWCCA 105 and R v AD [2005] NSWCCA 208 are the two cases contained in the table which did involve offences that were committed after 1 February 2003. The first was a Crown appeal against a sentence imposed for a single offence of aggravated sexual assault in which the circumstance of aggravation was that the offender maliciously inflicted actual bodily harm on the victim, his former girlfriend. This Court found that the degree of divergence from the statutory non-parole period and the sentence imposed was appropriate as the culpability of the offender was considerably attenuated because of his mental illness. In the second, the offender was a juvenile (15 years at the time of the offence) and the circumstance of aggravation was that he was in the company of another person.

37 The Crown points out that there have been four further matters under s 61J dealt with in this Court. They are R v Reyes [2005] NSWCCA 218; R v Doolan [2006] NSWCCA 29; R v Doherty [2006] NSWCCA 133 and R v TV [2006] NSWCCA 174. The circumstances of aggravation in each of these matters involve either the malicious infliction of actual bodily harm on the victims or a threat with an offensive implement. The Crown contends that the facts in these cases bear no resemblance to the applicant's case and are accordingly of no assistance either as comparable cases or in establishing a range of sentences.

38 The Crown also emphasises that this Court has on many occasions stressed the need to protect children from sexual abuse by adults and that this is especially so when the perpetrator is the victim's parent. In R v Dent (Court of Criminal Appeal, 14 March 1991, unreported) Lee J at [6], with whom Gleeson CJ and Loveday J agreed, stated:

"One begins with the proposition . . . that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under sixteen . . . That acknowledgement has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life, caused by such conduct.
When a child is living in a family situation, he or she is particularly vulnerable to sexual molestation from the male parent, or stepparent. The community regards the family unit as one in which each parent is in a position of trust in respect of the child, under a duty to rear it and give it proper guidance and to refrain from using the child for sexual pleasure. The child is usually helpless to protect itself against sexual attack from the parent - as in this case - and that can be seen in so many other cases of a like kind that come before us. One sees in such cases that the child is too embarrassed, too afraid or develops too great a sense of guilt to complain. When the male parent takes advantage of the helplessness of the child, he not only commits a breach of trust, but it is a cowardly breach of trust. The protector of the child's body, the guide and mentor of the child, in those circumstances has abandoned his proper role in order to gratify his lust on the child".

39 It is well established that the age of the victim is important in determining the criminality of the offending behaviour. Generally speaking, the younger the victim the more serious the criminality due to the helplessness of a young child in a family unit: R v BJW (2000) 112 A Crim R 1 at [21], a case involving a 13 year old child.

40 The Crown submits further that this is a case where no relevant sentencing principle was ignored or misapplied. No submission was made on behalf of the applicant to the contrary. The Crown submits that the sentences imposed were entirely warranted in law on the undisputed facts and that his Honour correctly applied Pearce v The Queen in setting the individual sentences and in applying the principle of totality by partially accumulating most of the sentences, and in the case of two offences (sequence 4 and 8) by making those sentences entirely concurrent with other sentences. The Crown points out that the aggregate sentence of 9 years and 9 months imposed for eight offences was less than the applicable standard non-parole period in respect of each of the three s 61J offences, and the effective non-parole period was half that standard non-parole period.

41 In summary, the Crown submits that the applicant has not demonstrated that the individual sentences are, or the total aggregate sentence is, manifestly excessive. It is submitted that a no less severe sentence is warranted in law: s 6 (3) Criminal Appeal Act 1912.

Decision

42 In R v Simpson (2001) 53 NSWLR 704 at [79], Spigelman CJ said:

" [79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process". That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that "some other sentence ... is warranted in law and should have been passed". Unless such an opinion is formed, the essential precondition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefor" is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in a requisite sense."

43 In the same case, Sully J had this to say at [99] and [100]:

" [99] Whenever an applicant for leave to appeal against sentence submits that there is cause to show why this Court should intervene and reduce the primary sentence, it is, as I think, obvious that the first thing to be established by the applicant is that the primary sentencing discretion has miscarried, by reason of some error of fact or of law; or because of the cumulative effect of errors of both fact and law. The errors, whether of fact or of law, may be either latent or patent; but whether latent or patent, some error must be demonstrated before this Court becomes entitled at all to consider interfering with the sentence passed at first instance : R v Vachalec [1981] 1 NSWLR 351 at 353 F; R v Visconti [1982] 2 NSWLR 104 at 108 G.
[100] Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and resentence. Before that can happen properly in law, the conditions specified in s 6(3) of the Criminal Appeal Act 1912 must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is "warranted in law". I agree with the observations made in this connection by Lee A-J In R v Astill (No 2) (1992) 64 A Crim R 289 at 303, 304."

44 The burden of the applicant's submission would appear to be that the sentencing judge's discretion miscarried because, or to the extent that, he failed to give sufficient weight, or to have proper regard, to what he described on a number of occasions as the exceptional features of this case. His Honour's Remarks on Sentence employ that adjective on at least three relevant occasions. In particular, the applicant relies upon his Honour's use of the expression in the sentence quoted above, part of which includes the words "in my experience this case is quite exceptional and the subjective case cannot be described as anything other than compelling".

45 In my opinion, this misconceives the course adopted by his Honour. As his Honour's Remarks on Sentence indicate, and as authority reveals, cases of sexual assault upon young children, such as the present, are properly to be regarded as crimes of the utmost seriousness. Nothing pointed to by the applicant in this case suggests that the offences with which he was charged should be treated in any other way. In arriving at the sentences which he imposed, the sentencing judge clearly, and in my opinion correctly, balanced the seriousness of the offences on the one hand with the exceptional factors favourable to the applicant on the other hand. The structure of his Honour’s careful and detailed remarks makes this clear. There is, in my opinion, no good basis upon which to suggest that the primary sentencing discretion miscarried

46 It follows in my opinion that it cannot be said that the sentences imposed were manifestly excessive.

CONCLUSION

47 In my opinion, leave to appeal against sentence should be granted and the appeal against sentence should be dismissed.

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Citations

NT v Regina Non-publication order [2007] NSWCCA 143

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CITATION:	NT v Regina Non-publication order [2007] NSWCCA 143
HEARING DATE(S):	24 April 2007
JUDGMENT DATE:	24 May 2007
JUDGMENT OF:	James J at 1; Rothman J at 2; Harrison J at 7
DECISION:	Leave to appeal against sentence granted. Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - five counts aggravated indecent assault, two counts aggravated sexual assault, one count attempted aggravated sexual assault - offender step father of victim - victim 10 and 11 years of age at time of offences - whether overall sentence manifestly excessive taking into account applicant's early plea of guilty - whether sentencing outcome sufficiently reflective of the finding of exceptional features identified by sentencing judge
LEGISLATION CITED:	Crimes Act 1900 - ss 61(M)(1), 61(J)(1), Crimes (Sentencing Procedure) Act 1999 - ss 21A(1), (2) & (3)
CASES CITED:	Pearce v The Queen (1988) 194 CLR 610 R v AD [2005] NSWCCA 208 R v BJW (2000) 112 A Crim R 1 R v Dent (Court of Criminal Appeal, 14 March 1991, unreported) R v Doherty [2006] NSWCCA 133 R v Doolan [2006] NSWCCA 29 R v Kennedy [2000] NSWCCA 527 R v Hopkins [2004] NSWCCA 105 R v Reyes [2005] NSWCCA 218 R v Sangalang [2005] NSWCCA 171 R v Simpson (2001) 53 NSWLR 704 R v Slack [2004] NSWCCA 128 R v Thomson and Houlton (2000) 49 NSWLR 383 R v TV [2006] NSWCCA 174 R v Way (2004) 60 NSWLR 168
PARTIES:	NT (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/696
COUNSEL:	C Loukas (Applicant) J Dwyer (Crown)
SOLICITORS:	S O'Connor, Solicitor for the Legal Aid Commission of New South Wales (Applicant) S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/61/0063; 06/61/0553
LOWER COURT JUDICIAL OFFICER:	Marien DCJ
LOWER COURT DATE OF DECISION:	25 August 2006 (date of sentence)