Ocek v R

[2023] NSWCCA 308

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ocek v R [2023] NSWCCA 308

Hearing dates:

7 July 2023

Date of orders:

6 December 2023

Decision date:

06 December 2023

Before:

Ward P at [1];
Stern JA at [2];
N Adams J at [3].

Decision:

1.   An extension of time to bring this appeal is granted.

2.   Leave to bring this appeal is granted.

3.   The appeal is dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether misstatement in the remarks on sentencing meant that sentencing judge proceeded on an incorrect basis and had capacity to influence the sentence – Whether expressions of frustration by the sentencing judge in the sentencing remarks at the way the charges had been brought affected the sentencing judge’s discretion

CRIME – Appeals – Appeal against sentence – Where evidence of assaults in custody was not before the Court at the sentencing hearing – Whether assaults in custody constituted extra-curial punishment

CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred by failing to take into account events that had not occurred at the time of sentencing

CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to find that delays in the police investigation amounted to a mitigating factor in sentencing

CRIME – Appeals – Appeal against sentence – Where there was material before the Court at the sentencing hearing – Where the sentencing judge had made factual findings adverse to the applicant – Whether the sentencing judge had failed to take into account relevant material – Whether the findings made by the sentencing judge were reasonably open

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether the indicative sentences for six counts were manifestly excessive – Whether manifestly excessive sentences on some of the 38 counts was sufficient to establish that the overall effective sentence was manifestly excessive

CRIME – Appeals – Appeal against sentence – Where charges were initially brought under the wrong section of legislation – Where that was not brought to the applicant’s knowledge by his lawyers – Where those charges were later withdrawn – Where the applicant’s lawyers had advised him against tendering certain evidence – Whether there had been a miscarriage on the basis of incompetence of counsel

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW), s 12C

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW), ss 66C(1)(3), 66EA (1), 66EB(2), 61J(1), 249K(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 1A, s 53A

Criminal Appeal Act1912 (NSW), s 6(1)

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Cases Cited:

AB v R [2014] NSWCCA 339

Ahmu v R [2014] NSWCCA 312

Azzopardi v R [2019] NSWCCA 306

Benn v R [2023] NSWCCA 24

Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145

Clarke v R [2015] NSWCCA 232

Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154

Elchiekh v R [2016] NSWCCA 225

Hitchen v R [2010] NSWCCA 77

Hordern v R [2019] NSWCCA 138

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

KeesLangelaar v R [2016] NSWCCA 143

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Matthews v R [2013] NSWCCA 187

Melville v R [2023] NSWCCA 284

Merheb v R [2021] NSWCCA 224

Newman (a pseudonym) v R [2019] NSWCCA 157

Nudd v The Queen [2006] HCA 9; 80 ALJR 614

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

Ocek v R [2009] NSWCCA 42

R v BarbrosOcek [2018] NSWDC 349

R v O’Donoghue (1988) 34 A Crim R 397

R v Wright [2017] NSWCCA 102

Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398

Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593

TKWJ v R (2002) 212 CLR 124; [2002] HCA 46

Tsiakas v R [2015] NSWCCA 187

Vella v R [2015] NSWCCA 148

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:

Principal judgment

Parties:

Barbaros Ocek (Applicant)
Crown (Respondent)

Representation:

Counsel:
Self (Applicant)
M England and M Swift (Respondent)

Solicitors:
Self (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/218371; 2014/301260; 2014/168844

Publication restriction:

Non-publication order preventing publishing the identity or anything that might identify the complainants or victims pursuant to s 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW) or s 578A of the Crimes Act 1900 (NSW).

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v BarbrosOcek [2018] NSWDC 349

Date of Decision:

17 April 2018

Before:

Tupman DCJ

File Number(s):

2014/218371; 2014/301260; 2014/168844

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to 38 offences committed against 11 separate victims. The applicant was sentenced to an effective sentence of 20 years imprisonment commencing on 24 July 2014, with a non-parole period of 15 years. At the time of the hearing of the appeal, the applicant had served over nine years of his non-parole period.

The offences to which Mr Ocek pleaded guilty, contrary to the Criminal CodeAct 1995 (Cth), Crimes Act 1900 (NSW) (Crimes Act), Crimes (Domestic and Personal Violence) Act 2007 (NSW) and Child Protection (Offenders Registration) Act 2000 (NSW), were: use carriage service to groom person under 16 years for sex; use carriage service to solicit child pornography; use carriage service to send indecent material to person under the age of 16; persistent sexual abuse of a child; produce child abuse material; groom child for unlawful sexual activity; intimidation; sexual intercourse with person between 14 and 16 years old; indecent assault person under 16 years of age; fail to comply with reporting conditions; possess child abuse material; demand with menaces; and procure child under the age of 14 for production of child abuse material.

The applicant had contacted the victims through social media, by representing himself to be a teenage male (mostly between the ages of 16 and 19 years old although in the case of one victim, 12 years old). His victims were mostly aged 12-14 years old, although some were slightly older.

The applicant sought leave to appeal on 11 grounds, relating to misstatements in the remarks on sentencing, assaults experienced in custody, delays in the police investigation, the effects of the Covid-19 virus, alleged over charging on the indictment, a manifestly excessive sentence on certain of the offences, and mistakes made by the applicant’s former lawyers and the ODPP in the charge negotiation process.

Held (N Adams J, Ward P and Stern JA agreeing) granting an extension of time to bring the appeal and granting leave to bring the appeal, but dismissing the appeal:

1. The sentencing judge’s understatement of a previous sentence served by the applicant in one place in the remarks on sentence did not establish that her Honour proceeded on an incorrect basis (N Adams J at [84], Ward P at [1], Stern JA at [2]). Even if the sentencing judge did proceed on an incorrect basis in that respect, such an error did not have the capacity to influence the sentences imposed (N Adams J at [84]-[85], [87], Ward P at [1], Stern JA at [2]).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Newman (a pseudonym) v R [2019] NSWCCA 157; Ibbotson (a pseudonym) v R [2020] NSWCCA 92; Benn v R [2023] NSWCCA 24 applied.

2. As to the applicant’s contention that the sentencing judge erred by not taking into account the seriousness of the assaults he experienced while in custody, the assaults were not raised before the primary judge at sentencing, and it was not established that the assaults were the result of these specific offences, with the consequence that they could not be classified as extra-curial punishment (N Adams J at [93], [95]-[96], Ward P at [1], Stern JA at [2]).

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460; Melville v R [2023] NSWCCA 284 considered, Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 applied.

3. The alleged delay by police in the forensic examination of the relevant devices was not one which would be a mitigating factor on sentence, where the only consequence of that delay was a state of suspense or uncertainty (N Adams J at [102], Ward P at [1], Stern JA at [2]).

Elchiekh v R [2016] NSWCCA 225 applied.

4. The grounds of appeal which sought mitigation for events occurring after the applicant was sentenced (ground 5 related to the effects of the Covid-19 pandemic and ground 9 related to an assault in custody which occurred in May 2022) did not establish an error, as the events had not occurred at the time of sentencing (N Adams J at [108], Ward P at [1], Stern JA at [2]).

Douar v R [2005] NSWCCA 445; (2005) 159 A Crim R 154 applied.

5. As to the argument that the sentencing judge erred in saying that actual sexual contact occurred “very soon after” the applicant’s release from custody, it was clear from the reasons read as a whole that her Honour was aware of the correct chronology of the offending. Even if that error did occur, it was not such as to have the capacity to have any influence on sentence (N Adams J at [112]-[113], Ward P at [1], Stern JA at [2]).

Benn v R [2023] NSWCCA 24 applied.

6. Regarding the applicant’s challenge to the sentencing judge’s factual findings regarding his difficult childhood, and the alleged failure to take into account relevant material, it was open on the evidence for her Honour to make the findings she did (N Adams J at [117], Ward P at [1], Stern JA at [2]). The sentencing judge expressly referred to much of the material relied upon by the applicant and stated that she had read all the documents and taken them into account, even if they were not explicitly referred to in the reasons (N Adams J at [116], [118]-[121], Ward P at [1], Stern JA at [2]).

Clarke v R [2015] NSWCCA 232; Hordern v R [2019] NSWCCA 138 considered; Azzopardi v R [2019] NSWCCA 306; R v O’Donoghue (1988) 34 A Crim R 397; AB v R [2014] NSWCCA 339 applied.

7. The sentencing judge’s frustration at the way the charges had been brought, as expressed in the remarks on sentence, did not demonstrate that the applicant had received additional punishment for charges her Honour believed should not have been brought. It was within the sentencing judge’s discretion to impose concurrent sentences (N Adams J at [133]-[134], Ward P at [1], Stern JA at [2]).

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 applied.

8. Any failure by the applicant’s lawyers in not telling him that the charges initially brought under s 66C(1) of the Crimes Act were incorrect could not have caused a miscarriage in the sentencing process, as the charges were withdrawn. Similarly, the applicant’s suggestion that the ODPP deliberately overcharged the applicant is baseless (N Adams J at [159], Ward P at [1], Stern JA at [2]). The applicant did not establish how the withdrawal of alternative counts made the sentencing process unfair (N Adams J at [162], Ward P at [1], Stern JA at [2]). The applicant did not establish that he was pressured to sign the agreed facts such that the proceedings on sentence miscarried; it is clear that his lawyers were seeking to obtain the best result for him, which included protecting the discount from an early plea (N Adams J at [198], Ward P at [1], Stern JA at [2]). Nor did the applicant establish that his lawyers had acted incompetently in advising against tendering into evidence Facebook entries of conversations between the applicant and certain of the victims (N Adams J at [206], Ward P at [1], Stern JA at [2]).

Nudd v The Queen [2006] HCA 9; 80 ALJR 614; Tsiakas v R [2015] NSWCCA 187; Kees Langelaar v R [2016] NSWCCA 143; Matthews v R [2013] NSWCCA 187; Vella v R [2015] NSWCCA 148; Ahmu v R [2014] NSWCCA 312 considered.

9. Regarding the sentence for count 3 (persistent sexual abuse of a child), in the context of the objective seriousness of the applicant’s conduct and lack of mitigation, the sentence imposed was not manifestly excessive; further, even if that sentence was excessive, the applicant did not establish that the overall effective sentence (which included 37 other counts) was plainly unjust (N Adams J at [216]-[217], [222], Ward P at [1], Stern JA at [2]). Regarding the indicative sentences for counts 11, 14, 15, 16 and 17 (sexual intercourse with a child between 14 and 16 years old), considering the scope of the applicant’s offending in the context of the application of the totality principle, the applicant did not establish that the aggregate sentence was manifestly excessive (N Adams J at [221], Ward P at [1], Stern JA at [2]).

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Merheb v R [2021] NSWCCA 224 applied.

JUDGMENT

1. WARD P: I have had the considerable advantage of reading in draft the comprehensive reasons of N Adams J with which I agree. I also agree with the orders her Honour has proposed.

2. STERN JA: I agree with the proposed orders and the reasons provided by N Adams J.

3. N ADAMS J: The applicant, Barbaros Ocek, seeks leave to appeal out of time against the sentence imposed on him by Tupman DCJ on 17 April 2018 for a multitude of sexual offences: R v Barbros Ocek [2018] NSWDC 349. The extent of the applicant’s offending was summarised by her Honour at [5] of her sentencing reasons as follows:

“This is a particularly complex and difficult sentence. Not only are there 38 substantive counts involving both State and Commonwealth offences, 10 additional offences over four separate Form 1 documents and one related summary offence to be considered and sentenced separately but one of those substantive charges, count 3, is a charge of persistent child sexual abuse involving seven separate dates covering 32 separate sexual offences. There are 11 separate victims of these offences ranging in age from 11 to 19. Of those 11, nine were under the age of 16.”

4. The applicant was sentenced to an effective sentence of 20 years imprisonment with a non-parole period of 15 years backdated to commence on 24 July 2014. By the time of the hearing of this appeal, he had already served over nine years of his non-parole period.

5. In addition to the complexity of the sentencing process, this matter had an unfortunate procedural history in the Local and District Courts. Although the applicant pleaded guilty in the Local Court, he raised a number of factual disputes which led to changes of lawyers and lengthy adjournments before the matter could be finalised in the District Court. The proceedings in this Court have also been complicated by the fact that the applicant, who appears self-represented, prepared his own written submissions and affidavits. In fact, the Court of Criminal Appeal Registrar expressed concern at a callover that some of the applicant’s submissions on this appeal sought to traverse his plea. The applicant was afforded the opportunity to file an appeal against conviction for more abundant caution. Despite this, during the hearing of the appeal, in response to questioning by the presiding judge, the applicant confirmed that he did not appeal against his convictions and only sought to appeal against his sentence.

6. By way of overview, the applicant was on parole for violent sexual offending in 2011 when he set up a false online persona to groom young girls (usually aged 12-14 years but some were older) for sexual activity. His modus operandi was to contact teenage girls on social media using false names and profile pictures representing himself to be a teenage male, mostly between the ages of 16 and 19 years old but in the case of one victim representing himself to be 12 years old. He was in fact aged between 41 and 43 years old at the time. All 11 victims were manipulated into providing sexualised images to him and engaging in sexual content online. Significantly, of his 11 victims, he succeeded in persuading two of them to meet in person and sexual activity followed. When arrested he was in possession of a significant amount of child abuse material, including that relating to some of his victims.

7. The applicant came to the attention of the NSW Police Child Exploitation Internet Unit in June 2011 after they received complaints that he was grooming 13 and 14 year old girls on social media sites. Police were not able to obtain statements from any victims, so an undercover police officer posed as a 13 year old girl online and the applicant was caught engaging in grooming conduct with the officer. He was arrested, charged and sentenced by Arnott SC DCJ on 10 May 2013 for using a carriage service to groom a person under 16 years for sex, using a carriage service to send indecent material to a person under 16 years and possessing child abuse material. His overall effective term of imprisonment was 2 years with an effective minimum term of 15 months.

8. Following his release on a Recognizance Release Order (RRO) on 29 December 2013, the applicant was placed on the Child Protection Offenders Register (the Register). On 1 April 2014, he signed an acknowledgement of his responsibilities as a registrable person pursuant to s 12C of the Child Protection (Offenders Registration) Act 2000 (NSW) (the CPOR Act). Despite being on conditional liberty and on the Register, the applicant went on to commit further similar offences almost immediately upon his release, although he was not able to lure any of his victims to meet with him before he was arrested again.

9. The applicant was arrested and charged on 24 July 2014 with the offences upon which he was sentenced by Judge Tupman. Some of those offences were committed before he was sentenced by Judge Arnott (including the sexual assaults on two victims) and others were committed following his release. The relevant offending thus occurred in the periods before and after his incarceration: between 1 January 2012 and 31 May 2012 and then again between 14 January 2014 and 24 July 2014.

10. Following the applicant’s arrest on 24 July 2014, he was refused bail and has remained in custody since that time. After a period of charge negotiation, the applicant pleaded guilty to 38 offences in the Local Court and was committed for sentence. A number of factual disputes were foreshadowed at the time of those pleas. There was a further delay in the finalisation of his matter when the applicant sacked both his first and second set of lawyers (funded by Legal Aid NSW). As will be seen below, three of the applicant’s 11 grounds of appeal pertain to criticism of those lawyers.

11. Annexed to the Crown submissions in this matter is a table listing the offences on the indictment, the Form 1 offences, the offence provisions, the maximum penalties and the indicative sentences, aggregate sentences and remaining sentences. I have reproduced that table below. As stated above, the overall effective sentence imposed on the applicant for counts 1-38 was a sentence of 20 years with an effective non-parole period of 15 years commencing on 24 July 2014. The effective head sentence expires on 23 July 2034. The applicant is first eligible to apply for release to parole on 23 July 2029.

Count	Offences	Maximum Penalty	Victim	Indicative/Fixed	Total	NPP
BLOCK ONE
(Commonwealth Offences)	Aggregate for this block	5 years 24/7/2014-23/7/2019	3 years
7	Use carriage service to groom under 16 s 474.27 Criminal Code	12 years	RW	2 years indicative
8	Use carriage service to groom person under 16 years for sex s 474.27 Criminal Code	12 years	JW	18 months indicative
9	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	JW	18 months indicative
18	Use carriage service to groom under 16 years for sex s 474.27 Criminal Code	12 years	KM	2 years indicative
19	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	KM	2 years indicative
22	Use carriage service to groom under 16 years for sex s 474.27 Criminal Code	12 years	HP	18 months indicative
23	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	HP	18 months indicative
25	Use carriage service to send indecent material to person under the age of 16 s 474.27A Criminal Code	7 years	HP	12 months indicative
26	Use carriage service to groom person under 16 years for sex s 474.27 Criminal Code	12 years	NR	12 months indicative
27	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	NR	12 months indicative
28	Use carriage service to send indecent material to person under the age of 16 s 474.27A Criminal Code	7 years	NR	12 months indicative
29	Use carriage service to groom person under 16 years for sex s 474.27 Criminal Code	12 years	MWL	6 months indicative
30	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	MWL	6 months indicative
31	Use carriage service to groom person under 16 years for sex s 474.27 Criminal Code	12 years	CBJ	6 months indicative
32	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	CBJ	6 months indicative
33	Use carriage service to groom person under 16 years for sex s 474.27 Criminal Code	12 years	KB	6 months indicative
34	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	KB	6 months indicative
35	Use carriage service to groom person under 16 years for sex s 474.27 Criminal Code	12 years	KD	18 months indicative
36	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	KD	18 months indicative
37	Use carriage service to solicit child pornography s 474.19 Criminal Code	15 years	PM	18 months indicative
BLOCK TWO	VICTIM
(RW offences)
3	Persistent sexual abuse of a child s 66EA(1) Crimes Act	25 years	RW	15 years 24/7/2019- 23/7/2034	10 years
4	Produce child abuse material s 91H(2) Crimes Act	10 years	RW	Fixed term of 18 months 24/7/2019- 23/1/2019
Taking into account Form 1(2) offence • Possess child abuse material
5	Groom child for unlawful sexual activity s 66EB(3) Crimes Act	10 years	RW	Fixed term of 2 years 24/7/2019- 23/7/2021
6	Intimidate s 13(1) Crimes (Domestic & Personal Violence) Act	5 years	RW	Fixed term of 6 months 24/7/2019- 23/1/2020
Total for this block	15 years	NPP 10 years
BLOCK THREE	VICTIM
(JW offences)	Aggregate for this block	6 years	NPP 3 years
10	Groom child for unlawful sexual activity s 66EB(3) Crimes Act	10 years	JW	2 years indicative
Taking into account Form 1(3) offences x 3 • Meet/travel to meet child groomed for sexual activity • Produce child abuse material • Disseminate child abuse material	JW JW JW/RW
11	Sexual intercourse with person >=14 & <16 years s 66C(3) Crimes Act	10 years	JW	4 years indicative
60	Taking into account Form 1(4) offences x 5 • Aggravated indecent assault • Sexual intercourse with person >=14 & <16 years • Sexual intercourse with person >=14 & <16 years • Aggravated indecent assault • Aggravated indecent assault	JW (each)
12	Produce child abuse material s 91H(2) Crimes Act	10 years	JW	2 years indicative
13	Indecent assault person under 16 years of age s 61M(2) Crimes Act	10 years	JW	3 years NPP 2 years indicative
14	Sexual intercourse with person >=14 & <16 years s 66C(3) Crimes Act	10 years	JW	4 years indicative
15	Sexual intercourse with person >=14 & <16 years s 66C(3) Crimes Act	10 years	JW	4 years indicative
16	Sexual intercourse with person >=14 & <16 years s 66C(3) Crimes Act	10 years	JW	4 years indicative
17	Sexual intercourse with person >=14 & <16 years s 66C(3) Crimes Act	10 years	JW	4 years indicative
FURTHER COUNTS
All concurrent with other blocks
1	Fail to comply with reporting conditions s 17(1) Child Protection (Offenders Registration) Act	5 years	Fixed term of 6 months 24/7/2014 - 23/1/2015
Taking into account Form 1(1) offence • Fail to comply with reporting conditions s 17(1) Child Protection (Offenders Registration) Act
2	Possess child abuse material s 91H(2) Crimes Act	10 years	Fixed term of 18 months 24/7/2014 - 23/1/2016
20	Groom child for unlawful sexual activity s 66EB(3) Crimes Act	10 years	KM	Fixed term of 2 years 24/7/2014 - 23/7/2016
21	Demand with menaces s 249K(1)(a) Crimes Act	10 years	AC	Fixed term of 6 months 24/7/2014 - 23/7/2015
24	Procure child under the age of 14 for production of child abuse material s 91G(1)(b) Crimes Act	14 years	HP	Fixed term of 12 months 24/7/2014 - 23/7/2015
38	Intimidate s 13(1) Crimes (Domestic and Personal Violence) Act	5 years	PM	Fixed term of 12 months 24/7/2014 - 23/7/2015
S166
Fail to comply with reporting conditions s 17(1) Child Protection (Offenders Registration) Act	5 [sic: 2 years]	Convicted 10A Crimes (Sentencing Procedure) Act
All concurrent with other blocks
Total sentence	20 years	NNP [sic] 15

Grounds of appeal

12. The applicant filed a notice of intention to apply for leave to appeal against sentence on 20 April 2018. Extensions were granted by the Registrar until 1 March 2019 but they ultimately expired. An application for leave to appeal out of time was filed on 23 December 2022. The applicant now seeks leave to appeal on the following 11 grounds:

Ground 1: HH Tupman erred by not properly taking into account the 15 month sentence imposed by HH Arnott at C.D.C., error by saying served 12 months for exactly the same offences committed in exactly the same period.

Ground 2: Extra-curial punishment when held at Parklea CC 2016, HH Tupman erred by not taking into account the seriousness of the assault. Error by saying regrettably and well known to the Courts there are prisons that are comprised only of people who are child abusers and paedophiles. It’s the job of corrections to look after people.

Ground 3: Delay by police in the forensic examination of all the electronic devices. Error in the process as phones were not encrypted.

Ground 4: HH sentence was manifestly excessive for the s 66EA(1) offence.

Ground 5: Seeking a reduction for the hardships endured during the covid pandemic, 2020 to 2022.

Ground 6: ODPP made a error in negotiations by the use of much heavier offences, that being 26 x 61J(1) and 9 x s 66C(1) offences on a plea proposal in order for me to plead guilty to an offence of s 66EA(1).

Ground 7: Indictment had 38 offences after negotiations with Madam Crown, at sentencing HH Tupman reduced this to 21 offences. Madam Crown was put on notice error has occurred by HH with indicative sentences which formed the aggregate sentence was manifestly excessive.

Ground 8: The sentence for the s 66C(3) offences, with Ms J.W. Counts 11, 14, 15, 16, 17 was manifestly excessive.

Ground 9: Extra-curial punishment whilst held at Silverwater CC 2022, isolation period with covid.

Ground 10:

(a)    HH Tupman erred in saying actual sexual contact very soon thereafter.

(b)   Error in assessment of prospects of rehabilitation and did not take into account remorse letter nor the letter and program with Chaplain.

(c)   Error by not taking into account difficult childhood involving sexual abuse of intellectual functioning.

Ground 11: Factual error by Madam Crown on statement of facts in relation to meeting Ms RW on 7 occasions.

13. By way of introductory explanation, it can be seen that both grounds 1 and 10(a) rely on misstatements made by the sentencing judge in her reasons. Ground 2 asserts error in the judge not mitigating the sentence for assaults he suffered in custody prior to the sentence. Ground 3 is a complaint about the police investigation. Grounds 5 and 9 assert that the sentence should be reduced for the effects of the Covid-19 virus (in circumstances where he was sentenced two years before the pandemic commenced). Ground 7 complains that there was over charging on the indictment. Grounds 10(b) and (c) contend for error in her Honour’s assessment of the applicant’s prospects of rehabilitation, remorse and his difficult childhood, and grounds 4 and 8 (and part of ground 7) contend that the sentence imposed is manifestly excessive. Grounds 6 and 11 contend that the applicant’s former lawyers (and the Office of the Director of Public Prosecutions (ODPP)) made numerous mistakes as part of the charge negotiation process and the drafting of the statement of agreed facts.

14. The hearing of this appeal took the better part of a day and included oral testimony from some of the applicant’s former solicitors and barristers. Most of that time was spent by the applicant advancing his arguments on grounds 6 and 11. The applicant’s central complaints were that the reduction in charges in the Local Court was not as significant as his lawyers and the DPP contended, that the agreed facts in relation to count 3 were inconsistent with Facebook entries and that his lawyers were incompetent in not tendering relevant extracts of the Facebook entries between the victim on count 3 (RW) and the applicant before the sentencing judge. I will refer to the evidence said to be relevant to those grounds in my consideration of those grounds below.

15. The Crown opposed the extension of time to bring this appeal on the basis that it lacks merit. It was submitted that the explanation for the delay is far from compelling and there is potential for further psychological suffering of the victims. Although that position is understandable, the fact remains that in order to determine whether an extension of time should be granted it is necessary to consider the merits of the appeal in any event.

16. For reasons which will become apparent below, I would dismiss the appeal. I am not satisfied that any of the grounds of appeal should be upheld. Despite this, the applicant is serving a lengthy term of imprisonment and is self-represented. In order to achieve some finality in this matter I propose to grant the extension of time, grant leave to appeal and dismiss the appeal.

Evidence on the appeal

17. The applicant relied on a significant number of documents in support of his appeal. It is not necessary to list all of them. They included the following affidavits (numbered as in the index provided by the applicant):

1. An affidavit sworn by the applicant on 7 December 2021 (concerning delay) (Document 2);

2. An affidavit sworn or affirmed by the applicant on 29 October 2022 (concerning instructions the applicant said he gave to legal representatives regarding Facebook conversations with RW, which is related to count 3) (Documents 7 and 8);

3. An affidavit sworn by the applicant on 27 July 2022 (concerning the hardships he experienced during Covid-19, which is related to ground 5) (Document 18);

4. An affidavit sworn or affirmed by the applicant on 17 October 2022 (producing 15 pages of Facebook conversations between himself and RW) (Document 36);

5. An affidavit sworn or affirmed by the applicant on 4 June 2023 (annexing various documents);

6. An affidavit sworn or affirmed by Simon Lipert dated 10 April 2018 (the applicant’s solicitor as at 10 April 2018 providing hearsay evidence as to the applicant’s assaults in custody) (Document 3); and

7. An affidavit affirmed by Joy Quinones affirmed 10 April 2018 (an employee of the applicant’s lawyers as at 10 April 2018 indicating that she had received a telephone call from the media about the applicant on 22 March 2018) (Document 4).

18. The Crown’s position in relation to the material relied on by the applicant was set out in written submission as follows:

“i. Where the documents concern events relevant to the applicant’s experience of custody after he was sentenced on 16 and 17 April 2018, there is no objection on the ‘usual basis’ – that is, in relation to re-sentence. The same material is not admissible insofar as it is relied upon to assert error in the exercise of the sentencing judge’s discretion.

ii. In relation to documents that are or purport to be parts of material that was tendered in the sentence proceedings (albeit, in some cases, handwritten by the applicant, it is submitted that this Court would instead place reliance on the documents included in the appeal book (see Documents 43, 44, 47-48).

iii. Insofar as the applicant relies on material that was not before the sentencing court in supports [sic] of Grounds 6 and 11 – including but not limited to the Facebook material – that material is ‘new’ as opposed to ‘fresh’. It does not establish the applicant’s contention that a miscarriage of justice has been occasioned in connection with the complaints raised by those grounds.”

19. In response to the allegations concerning the conduct of his lawyers, the Crown obtained affidavits from some of them. Although I am satisfied that there is no basis for any criticism of those lawyers, I propose to anonymise them given the allegations made against them by the applicant (Solicitor A did not provide an affidavit as he is now deceased):

1. Barrister A affirmed 22 June 2023;

2. Solicitor B affirmed 15 June 2023;

3. Barrister B affirmed 16 June 2023; and

4. Solicitor C affirmed 19 June 2023.

Facts of the offending

20. The applicant was sentenced on the basis of a 71-page statement of agreed facts. These facts were summarised by the sentencing judge at [42]-[140] of her reasons which are available online. Given the nature of the applicant’s complaints, it is not necessary to summarise the facts in any detail. Further, her Honour was circumspect in her description of the facts given their highly sexually explicit nature. I propose to follow the same course and only provide sufficient detail to enable the complaints now made by the applicant to be understood and resolved.

21. I do not propose to repeat the specific offence provisions when describing each count as I have already done so in the table extracted above.

Background

22. The applicant was released on parole for a violent sexual offence in 2011: Ocek v R [2009] NSWCCA 42. Shortly after his release on parole and having apparently successfully completed the CUBIT (Custody-Based Intensive Treatment) program in custody he set up a false Facebook profile depicting himself as a young male in his mid-teens. His modus operandi was that he would send a friend request to a girl aged between 12 and 14 years of age and start a conversation with them that would soon become highly sexualised. The young girls all thought they were corresponding with a teenage boy and responded to requests which became increasingly explicit. During the period of offending prior to the applicant being incarcerated in 2012, two of the young girls, RW and JW, separately met up with the applicant and sexual activity took place between each of them and the applicant.

The first period of offending: 1 January 2012 to 31 May 2012

Offences against RW: Counts 3-7

23. One of the young girls the applicant contacted via Facebook was RW. She was 13 years old when she first communicated with him online in 2011 by accepting his friend request. They commenced talking both online and on the telephone. The applicant started to sexualise the conversations. He asked her to send sexually explicit photos of herself and they talked about sex. RW turned 14 in late January 2012. Not long after her birthday she agreed to meet with the applicant.

24. The applicant met RW at a park near her home in the Blue Mountains. When she got into his car she was expecting to meet the young man with whom she had been conversing online. When she got into the car she realised that he was a much older man, although at the time she did not realise how much older. I note that this aspect of the agreed facts is now challenged by the applicant under ground 11. He contends that contemporaneous Facebook entries “prove” that she knew who he was before she agreed to meet him.

25. The agreed facts state that between 26 January 2012 and 20 May 2012 the applicant met with RW on seven separate occasions. Over that time, he committed 32 acts comprising 25 acts of sexual intercourse and seven indecent assaults. These acts form the basis of the one count of persistent sexual abuse of a child (as it was then described) contrary to s 66EA(1) of the Crimes Act 1900 (NSW). In addition to the sexual assaults, the applicant repeatedly provided RW with alcohol, recorded their sexual acts and gave her gifts as part of the grooming process.

26. The agreed facts were, as would be expected, prepared based on RW’s statements to police. Relevant to ground 11, in RW’s first statement she referred to the assaults usually occurring on weekends as she did not see the applicant on school days. In her second statement, she specifically set out the seven occasions they met, and those occasions were included in the agreed facts. Under ground 11, the applicant now contends that if the first statement (that they only met on weekends) is accepted then there was not opportunity for him to have met with her on seven weekends during the period on the indictment.

27. The agreed facts also include a number of extracts from the Facebook communications between RW and the applicant. I do not propose to extract them here. They are very sexually explicit, manipulative and demanding. They demonstrate why the case against the applicant was so strong. Part of the complaint under ground 11 is that the applicant’s lawyers should have put even more of this sexually explicit and threatening Facebook material before the court.

28. The agreed facts record that the applicant repeatedly had penile-vaginal intercourse with RW and on one occasion penile-anal intercourse. He did not usually use a condom. The penetrative intercourse was usually vigorous and he often filmed the sexual activity between them. When RW either refused or was reluctant to accede to his demands he threatened to send the videos to her friends and family. At their third meeting, he told her that he wanted to marry her and later proposed to her. During their fifth meeting, he ignored her protests that she was too tired and had penile-vaginal intercourse with her as he held his hand around her throat making it difficult for her to breathe.

29. The assaults stopped at around the time that the applicant was arrested in May 2012 for three similar offences for which he was incarcerated between 29 September 2012 and 28 December 2013. On 14 January 2014, shortly after his release from custody in relation to these offences, he contacted RW and started to press her to help him engage JW for further sex. He also tried to persuade RW to have sex with him again and asked who had reported him to police in 2012. It was as a result of this contact by the applicant that RW finally went to police in 2014.

Offences against JW: Counts 8-17

30. In 2012, JW was an acquaintance of RW. She was nine months older than RW being 14 or 15 years old at the time of the offending against her. Like RW, JW accepted a friend request from the applicant who was using the same false profile as he used with RW. Using the same modus operandi, he started speaking with JW online, sexualised the conversations and then asked her to send naked photos of herself in various positions touching herself sexually. JW complied. The applicant asked her to meet up with him in February 2012. She subsequently met with him on two occasions.

31. The first time that JW met the applicant she was 14 years old. He digitally penetrated her as they were sitting in a car (count 11) and touched and licked her breasts (count 13). He filmed both of these acts. He then led her into bushland and committed three further acts of sexual intercourse including digital penetration, penetration with a vibrator and cunnilingus (counts 14 and 15 and Form 1). He also filmed this offending.

32. The agreed facts disclose that the applicant was manipulative in his communications with JW, often comparing her favourably with RW, who he was seeing at the same time. JW was aware that he was in contact with RW. On the second occasion that he met with JW, he showed her a series of videos of him having sex with RW. The second meeting took place in her home. The applicant digitally penetrated her (Form 1) before penetrating her vagina with a vibrator (count 16) and later, after indecently assaulting her including by forcing her to masturbate him (Form 1), he digitally penetrated her anus (count 17).

33. The offences against JW did not come to light until images of her were found on the applicant’s mobile telephone in 2014.

Offences against KM: Counts 18-20

34. The applicant became friends with KM online in January 2012 through a dating site and they remained in contact until 1 May 2012. She was 15 years old at the time. The applicant used the same modus operandi. He represented himself, with a false identity, as being a much younger male. After the applicant’s mobile telephones were examined in 2014, police found a large number of text messages (712) between himself and KM over 24 days. There were 214 text messages from him to KM soliciting sexually explicit photos or videos and giving very explicit instructions as to their content.

35. As was common with the other victims, when KM did not provide the applicant with the quality or type of sexually explicit video he wanted, he became angry with her and threatened to post pictures or videos of her online or call her mother. He also told her that he wanted to marry her and groomed her to such an extent that she agreed that she would move in with him when she turned 16. It is noted that the applicant also told RW and JW that he wanted to marry them in circumstances when he was having sexual intercourse with each of JW and RW around the same time as he was grooming KM.

Offence against AC: Count 21

36. AC was not a child at the time of the offence committed against her. She was 19 years old. She met the applicant online in 2012 after he used a false profile. She sent some photos to him of herself partially or fully exposed. In April 2012, he threatened to post those photos online if she did not send him more. This made her feel scared embarrassed and ashamed. Count 21 was a breach of s 249K(1)(a) of the Crimes Act of making an unwarranted demand with menaces with the intention of obtaining indecent images.

Offences against KB: Counts 33 and 34

37. The applicant was in contact with KB between 9 and 30 April 2012. She was 13 years old at the time. Again, he submitted a friend request to her using a fake profile pretending to be a young male. He repeatedly tried to solicit naked and suggestive photographs from her. She told him that she was not interested in any sex with him because she was only 13 years old.

The second period of offending: 14 January 2014 to 24 July 2014

38. As stated above, the applicant was in custody in relation to three similar offences from 29 September 2012 to 28 December 2013.

39. He was sentenced by Judge Arnott as follows:

1. Count 1 (use a carriage service to groom a person under 16 years) – the applicant received a term of imprisonment of 18 months from 29 March 2013 to expire on 28 September 2014 with an order that he be released on an RRO to be of good behaviour on or after 28 December 2013;

2. Count 2 (use a carriage service to transmit indecent material to a person under 16 years) – the applicant was sentenced to a fixed term of 6 months imprisonment commencing on 29 December 2012; and

3. Count 3 (possess child abuse material) – the applicant was sentenced to a fixed term of 6 months commencing from 29 September 2012.

40. The effect of this sentence was that he served 15 months in custody from 29 September 2012 until 28 December 2013 and was subject to the RRO for a further 9 months until 28 September 2014: an effective total sentence of 2 years imprisonment.

41. Upon his release he immediately continued offending in the same manner despite being on the Register and at conditional liberty.

Offences against HP: Counts 22 -25

42. HP was 11 years old when the applicant first contacted her via a Facebook friend request in either late 2013 or early 2014. He pretended that he was 17 years old. The offending occurred between 1 April and 14 July 2014. HP refused the applicant’s initial requests for a nude photograph but he persisted. She finally agreed to send three full body frontal nude images. He requested more explicit sexual photos and videos. Her Honour noted the following in relation to this offending at [175]-[176]:

“In fact a poignant part of some of the videos and texts in relation to this complainant is that she was persuaded to send sexually explicit material at a time which often coincided with her doing her year 7 homework. She was only a young girl and the offender exploited her immaturity to groom her into continuing sexually explicit conversations with him and to create and forward to him sexually explicit images and some videos.

The offender is very manipulative. I accept that he realised that this complainant was young and immature so he used younger language than for other contacts. He talked about them living together forever and making, in his words, a ‘gorgeous baby princess’. This is manipulative language used to groom a young girl.”

43. HP was identified as a victim after the applicant’s telephone was seized in May 2014. After she was spoken to by police, she reported this to the applicant who told her not to speak to them and that if she did, he would never speak to her again. Even though the applicant’s telephone had been seized he remained in contact with HP who continued to send him photos and videos. He threatened to show these videos to others if she did not make more. She sent the applicant 281 videos in total most of which show her performing sexual acts on herself, including with an object, at the applicant’s request.

Offences against NR: Counts 26-28

44. These offences were committed between 1 February and 1 June 2014 when NR was 13 years old. Again, the applicant contacted her via Facebook pretending that he was 16 years old. When she refused his repeated requests to send photographs of her naked body, he threatened to tell her mother that they had been in contact and told her she would go to jail. In response to those threats, she sent him a full-length nude photograph of herself. After further persistence by him, she ultimately sent him about 14 or 16 photographs of a similar type. She was too scared to tell her mother what had happened. The applicant told her that he knew where she lived and that he was going to punch her and send her to jail.

Offences against MWL: Counts 29 and 30

45. These offences were committed between 1 January and 14 February 2012 when MWL was 14 years old. The applicant sent her a friend request holding himself out to be a young male. As with all of the other victims, he sexualised the conversation. He attempted to persuade her to meet him, but she declined.

Offences against CBJ: Counts 31 and 32

46. These offences were committed in the period 1 February to 30 April 2014 when CBJ was 12 or 13 years old. Police subsequently found a photograph of her school uniform on a telephone seized from the applicant in mid-2014 and interviewed her at that time. The applicant had submitted a friend request using a false identity in late 2013 or early 2014 very shortly after his release from custody. He asked her for photographs and sexualised the conversations between them. He became abusive to her after she suspected that he was using a fake photograph. When she would not comply with his demands he descended into “nasty sexual threats and comments”.

Offences against KD: Counts 35 and 36

47. These offences were committed in the period 15 to 23 July 2014 when KD was 12 years old. The applicant contacted her via social media using a fake identity and told her that he was 12 years old. He used sexually explicit language despite being aware of her age. On one occasion when she told him she was at a party with a cousin, he asked to send a naked photo of an eight year old girl because he had “never seen an eight year old vagina”. He encouraged her to take sexually explicit videos of herself. When she refused, he became angry and threatened to put sexually explicit photographs of her on the internet and call the police. He called her demeaning names including calling her a “slut”.

Offences against PM: Counts 37 and 38

48. These offences were committed during the period 1 March to 1 May 2014 when PM was either 16 or 17 years old. The applicant contacted her on a social media application pretending to be an 18 year old boy and suggesting they had a mutual friend. Very early in their contact he pressured her to send photographs of herself to him. She sent some photographs and sexually explicit videos. The applicant then bombarded her with requests for more material of a similar character and tried to pressure her into meeting him. He threatened to post the images she had sent him publicly unless she sent more photos and videos. She was frightened that he would carry through with this so she sent some further videos. They ceased contact on 30 May 2014, which was the day that the applicant was contacted by police regarding his failure to comply with his reporting conditions.

Counts 1 and 2

49. When the applicant was released on his RRO on 29 December 2013, he was placed on the Register and was obliged to disclose telephone numbers, email accounts and social media accounts being used by him. On 30 May 2014, police seized telephones in his possession and uncovered text and social media messages requesting erotic images and sex. His failure to disclose these social media accounts is the subject of a Form 1 offence for count 1.

50. On 24 June 2014, police conducted a search of the applicant’s premises and located another mobile telephone with 9,490 images and 302 videos depicting female children and adolescents. Some images include the complainants in counts 22 to 25 and 37 and 38 engaged in sexual activity. Count 1 concerned the failure to disclose the use of the telephone number associated with this telephone. Count 2 concerned the possession of this material.

51. A subsequent re-examination of the phones that had been seized in May 2012 revealed even more sexual material. This re-examination of his phone by police is the subject of complaint under ground 3. After re-examining the reports from the phones seized in 2012, police contacted a number of people who the applicant had been in contact with online or by phone and it was only then that the extent of the applicant’s offending was revealed.

The proceedings on sentence

52. The proceedings on sentence were initially listed for a two-day disputed facts hearing at Sydney District Court on 5 and 6 June 2017. That factual dispute was not ultimately pressed.

53. On 5 June 2017, an indictment was presented and the applicant pleaded guilty to the 38 counts, having already pleaded guilty in the Local Court. The very lengthy Statement of Agreed Facts, signed by both the applicant and a representative of the ODPP, was tendered. The Crown tendered a bundle of material which included documents setting out the charges, the statement of facts, the applicant’s criminal and custodial histories, the reasons for sentence of Judge Arnott and a chronology of the proceedings. Barrister B appeared for the applicant at that time. A number of victim impact statements were read but the proceedings had to be stood over so the applicant could obtain a psychiatrist’s report. The proceedings were stood over until 24 November 2017.

54. The proceedings on sentence continued on 24 November 2017. Barrister B appeared on that occasion. The defence case was presented. The applicant did not give evidence, but the following documents were tendered on his behalf:

1. Report of Dr Richard Furst, consultant forensic psychiatrist, dated 17 September 2017;

2. CUBIT Treatment Report prepared by Kate Solomon, psychologist, dated 14 January 2011; and a second CUBIT Treatment Report prepared by Tamara Sweller, forensic psychologist, dated 19 December 2013;

3. Report of Dr Ilana Hepner, clinical neuropsychologist, dated 9 March 2017;

4. Report of Laura Durkin, forensic psychologist, dated 27 March 2013;

5. A bundle of vocational and lifestyle course certificates;

6. Various Justice Health Documents (relevant to the issue of extra-curial punishment); and

7. An unsworn statement of the offender, dated 22 November 2017.

55. Written submissions were filed and oral submissions were made that day. Of relevance to ground 2, Barrister B noted that the applicant was the subject of an assault whilst on “strict protection” when he was “choked” or “strangled” and that was “something that your Honour can take into account”. The solicitor for the Crown submitted that it was accepted that the applicant had been assaulted but not that it was as a result of these particular offences, so it was not a case of extra-curial punishment. Her Honour went on to observe that there was no evidence to suggest he was attacked because of the nature of these offences and that he would remain on strict protection. Barrister B subsequently noted that the applicant had made a statement to police about the assault and sought the opportunity to put that before the court on the next occasion. The matter was stood over until 16 February 2018. The matter did not proceed on that day.

56. The next transcript in the appeal book is on 12 April 2018. By that stage, Barrister B no longer appeared, and Barrister C appeared. The matter was supposed to be listed for sentence that day but her Honour was not ready. A notice of motion had been filed on behalf of the applicant by his new lawyers seeking a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the basis that the applicant was concerned that publication of his name in connection with the sentence may lead to him being assaulted in custody. Her Honour declined to make such an order but the exchanges between her Honour and Barrister C on that day form the basis of ground 2.

57. The police statement that had been referred to by Barrister B on the previous occasion was tendered by the Crown: statement of Detective Senior Constable Mark Delaney dated 11 April 2018. That statement noted that the applicant had been assaulted in custody in September 2016 but the reason for that assault differed as between the assailant and the applicant and no further action was taken. Her Honour was satisfied that the applicant was assaulted due to being a child sexual assault offender generally rather than anything to do with his specific charges.

58. During a further exchange as to why a non-publication order should be granted, her Honour observed the following:

“HER HONOUR: To what extent, with respect to your client, should I be concerned about his level of embarrassment over committing the offences that he has?

BARRISTER C: Mainly in relation to his reported assault in relation to the custodial system. So where he was assaulted in 2016--

HER HONOUR: Well, that's the job of Corrective Services, isn't it--

BARRISTER C: Yes.

HER HONOUR: --to look after people? I mean, regrettably, and well known to the Court, there are prisons that are comprised only of people who are child abusers and paedophiles.

BARRISTER C: Yes, your Honour.

HER HONOUR: And they all seem to hang out together, looked after in protection by Corrective Services. It's their job to do so.

BARRISTER C: Exactly right. I understand.

HER HONOUR: And in fact, it's amongst the many reasons why when I do deliver this judgment, I'm putting as little detail as possible about the acts, because I do not propose to allow this Court to be used in further dissemination of child abuse material.

BARRISTER C: May it please the Court, your Honour. That's the highest I could take this application.”

59. This passage is relied upon by the applicant in support of his contention under ground 2 that her Honour erred in not mitigating his sentence on the basis of extra-curial punishment.

Remarks on sentence

60. As stated above, her Honour’s reasons for sentence are available online. They are, by necessity, very detailed. I have already summarised the facts for most of the offences and have listed the sentences imposed for each offence in the table. I do not propose to summarise her Honour’s findings in relation to each of the 38 offences unless it is necessary to do so to consider a ground of appeal.

61. As for the two periods of offending, her Honour observed this at [12]:

“As events have transpired, the bulk of the offences now to be sentenced by me, and certainly the most serious ones, were committed in early 2012 before the offender started that prison sentence, but they had not yet been discovered.” (Emphasis added.)

62. It is to be noted that this passage shows that from the outset her Honour was aware that the most serious charges involving actual sexual intercourse were committed in early 2012 before the applicant was imprisoned. This is relevant to ground 10(a).

63. Her Honour accepted (at [17] and [18]) that the applicant was entitled to a 25% discount for his pleas of guilty in the Local Court. In addressing the applicant’s subjective case, her Honour noted the material before her at [19] as follows:

“There are reports from Dr Richard Furst consultant forensic psychiatrist before the court and reports from CUBIT Treatment Programs undertaken by the Offender on an earlier occasion in gaol, both in January 2011 and 19 December 2013. There is also a report from a clinical psychologist David Nein(?) March 2017 and a psychological report and certificates and other material tendered in relation to courses undertaken by the Offender in custody. I have read all of those documents and have taken them into account. Some portions of them I will refer to specifically.” (Emphasis added.)

64. Regrettably, there are a number of typographical errors in her Honour’s reasons published online. This is just one of them. I am satisfied that the reference to “David Nein(?) March 2017” should read “dated 9 March 2017” and is a reference to the report of Dr Ilana Hepner, clinical psychologist, dated 9 March 2017. This typographical error gave rise to the complaint under ground 10(b).

65. Her Honour accepted some but not all of what the applicant told Dr Furst and the psychologist about his personal circumstances: see at [21] and [23]. She accepted that he was a 46 year old man with a Turkish background who had some family in Australia from whom he was estranged. She seemed to accept that he was employed in his twenties and then ran his own telecommunication business as a sub-contractor for seven or eight years. He had a relationship with a woman for about ten years which failed because they both drank alcohol and smoked cannabis excessively. He started drinking excessively and using sleeping pills from 2003. As for other matters in those reports, her Honour observed the following at [22]:

“He has given a history to Dr Furst that his father was a violent alcoholic who regularly bashed him as a child. He also gave a history involving some sexual contact, not specified, that he alleges he had with his sister. He also claims to have seen his father engaging in some sexual contact with his sister. He also claims to have seen some sexual act performed on his sister by a family friend or babysitter when she was ten. As to these particular portions of history they are just that, history unable to be tested. This Offender, as found in all of the reports, and will be found by me, and which is evident from these offences in any event, is a manipulator and skilled liar. It is difficult to know whether this history is accurate. It does not appear to have formed a very significant part, if any, in relation to Dr Furst’s opinion.”

66. Her Honour’s reluctance to accept this aspect of the applicant’s account to Dr Furst forms part of the complaint made under ground 10(c).

67. Her Honour summarised the applicant’s criminal history: see at [24]-[26]. In addition to the violent sexual assault he committed in April 2002, she noted that he has convictions for driving offences, stealing and an indecent assault (in 1990), possessing a prohibited drug, entering enclosed lands, larceny of a motor vehicle, break, enter and steal and contravene a DVO. She noted that for the 2002 offences (aggravated sexual assault and inflict actual bodily harm and sexual intercourse without consent) he was sentenced to an overall term of imprisonment of 8 years and 6 months. She noted that he was towards the end of this parole period when he committed the 2012 offences.

68. Her Honour then noted the sentence imposed by Judge Arnott at [27] in these terms:

“He was then sentenced for the offences to which I have referred, by Judge Arnott in 2013. That was effectively for a term of imprisonment of 18 months with an effective overall non-parole period of 15 months with release to parole for 12 months on 29 December 2013.” (Emphasis added.)

69. Her Honour returned to the subject of the sentence imposed by Judge Arnott at [223] when considering the application of the totality principle in this matter at which time she observed the following:

“The first step I must undertake is to decide the overall term of imprisonment or total term of imprisonment which is necessary to reflect the total criminality involved in all of this offending. Even this has an added twist because it must also take into account that, at the same time covered by this offending, that this offender has spent 12 months in custody for exactly the same offences committed in exactly the same time period. That is part of the total criminality involved to take into account.” (Emphasis added.)

70. As set out above at [40], the sentence imposed by Judge Arnott was an effective total sentence of 2 years with a custodial component of 15 months. Her Honour correctly stated the non-parole period at [27] but understated it by three months at [223] (assuming the transcript correctly records what her Honour said). This understating by three months at [223] is the subject of the applicant’s complaint under ground 1.

71. Her Honour went on to note that the applicant was the subject of an RRO at the time of the commission of the 2014 offences: see at [27]. Her Honour then noted the following in relation to Dr Furst’s diagnosis at [28]-[30]:

“[28]   I accept from Dr Furst’s report that he does not suffer from psychosis. He has an unstable mood, according to assessments done of him in the recent past. There were risk assessments done of him for the purpose of the CUBIT reports. He reported an elevated sex drive, although treatment in custody on the last occasion, that is before he was released to parole in December 2013, had apparently worked to decrease that. He explained to those who were treating him on that occasion that he was motivated by his obsessional desire to access pornography and that he became attracted to under aged girls.

[29]   The Offender himself described himself to Dr Furst as predatory and I accept that this is an accurate description of the offences before me. Dr Furst in his report diagnosed him as suffering from three disorders in the DSM 5, namely substance abuse disorder, recurrent major depressive disorder and paedophilia not otherwise specified. In particular, on p 11 the following appears as Dr Furst’s opinion.

‘Mr Ocek has a lengthy history of emotional instability, chronic low self-esteem, depression, anxiety, restricted interests and social deficits .... he also suffered consider childhood trauma both physical and sexual and both actual and perceived rejection. He has a maladaptive coping style, is prone to anger and depression and has a high level of dysfunctional personality traits, including, being somewhat narcissistic, manipulative and exploitive of others.’

[30]   I accept Dr Furst’s opinion that the most relevant clinical disorder from which he suffers is paedophilia, which I also accept is a disorder of sexual arousal characterised by deviant fantasies, thoughts and behaviour, in the form of chronic hyper sexuality, use of sex as a means of and distorted cognitions about women and an attraction to younger girls. That opinion appears on p 12 of Dr Furst’s report. He also described him as having.

‘An unstable personality with a tendency towards manipulation and exploitation, impulsivity, hyper sexuality, poor impulse control, inability or unwillingness to apply strategies learnt in therapy programs such as CUBIT and his low mood probably all contributed to his offending behaviour.’”

72. Her Honour accepted Dr Furst’s recommendations regarding treatment and accepted that the best treatment for the applicant’s rehabilitation would be with anti-libidinal medication: see at [31]-[32]. She accepted Dr Furst’s opinion as to the risk of re-offending, at [34]-[35], which was as follows:

“Mr Ocek has multiple prior sex offences and evidence of sexual deviance in the form of paraphilia not otherwise specified. He belongs to a group of adult male sex offenders generally considered to be at high risk of reoffending.”

73. As for the applicant’s remorse, her Honour noted that the applicant told Dr Furst that he accepted his guilt and made some expressions of remorse and victim empathy but noted Dr Furst’s observation that the applicant had done so on the previous occasions. She referred to the applicant’s statement and observed the following at [36]-[38]:

“[36]   On a superficial level it appears to indicate a level of contrition and remorse but I do not accept that this can be accepted as genuine at face value. He does not in that statement address the fact that when he was being sentenced by Arnott J in 2013, expressing similar statements of remorse and victim empathy and having that taken into account, he had almost at exactly the same time as having committed the offences for which he was being sentenced by Arnott J, been involved in many of the offences before me, in particular those involving his actual sexual contact with the complainants RW and JW.

[37]   His victim empathy would therefore appear to have been limited only to the offence for which he had been caught. He is manipulative. That is the nature of his offending and in my view some of the statements he has made in this document and probably also to Dr Furst have the flavour of attempting to manipulate the Court and those providing reports for him for the Court.

[38]   In May 2013, when being, sentenced by Judge Arnott, he informed the Court that he thought his compulsive viewing of pornography and attraction to underage girls, and the need to communicate with them, was harmless. At the very time he was providing this information for the Court he knew that he had committed all of these earlier offences before me. He could not genuinely have held a view that what he had done was harmless.”

74. In the context of discussing the applicant’s prospects of rehabilitation, the sentencing judge said this at [39]:

“Despite treatment being provided, which, on the face of it appeared to be partially successful before his release to parole, almost as soon as he was released, within only a very few weeks, he had obtained a phone in the name of a person who did not exist and started to communicate with some of the victims of these offences, using the false identity of a teenage boy, knowing these young girls to be underage, turning the conversation rapidly into online sexual conversation and in some cases, actual sexual contact very soon thereafter.” (Emphasis added.)

75. The italicised portion of [39] is the subject of complaint under ground 10(a).

76. Her Honour went on to note that the applicant continued to offend even after being charged by police in May 2014 for failure to comply with his reporting conditions before finding this at [40]:

“He is manipulative and dangerous and at high risk of further offending. His prospects of rehabilitation are very poor in my view. There is a need for the sentences here to protect the community from this offender.”

77. Relevant to the complaint of manifest excess in relation to count 3 (ground 4) and the s 66C(3) offences: counts 11, 14, 15, 16 and 17 (ground 8), I note that her Honour made the following findings of objective seriousness and comments in relation to those matters.

78. At [96]-[104], her Honour assessed the objective seriousness of count 3. She noted the maximum penalty of 25 years imprisonment and that there were 32 separate sexual offences committed over a two month period on seven different occasions. Her Honour noted the significant age difference between the complainant and the applicant and that the sexual offences covered the whole range of sexual activity. It was noted that the applicant only used a condom once. He engaged in planning in addition to the grooming. That grooming included giving RW gifts but also telling her that because of the gifts she was obliged to agree to continue having sexual intercourse with him. He filmed many of the events and then threatened to send them to her family unless she continued to agree to have sex with him. Her Honour then observed the following at [100]-[101]:

“[100]   The law provides that the age of consent for sexual activity is 16 and that is because young people, albeit that they may be beginning to explore their sexuality and to do so by contact with other young people, are not emotionally mature enough to understand fully the nature of such sexual contact and certainly are not mature enough to withstand the grooming behaviour of adult paedophiles like this offender, nor to make considered choices about sexual contact with people so much older.

[101]   The Court of Criminal Appeal in the decision R v Nahlous [2013] NSWCCA 90 said the following:

‘There is a public interest in protecting children from conduct that inappropriately sexualises them at an age where they are ill equipped to protect themselves or respond either appropriately or in their own interest.’”

79. Her Honour concluded by making the following assessment as to the objective seriousness of count 3 at [104]:

“This is in my view a very serious offence for all of these reasons objectively at the very least at the middle of the range of offences capable of being charged under this section and possibly into the top of the range. It does not fall at the very top of the range for offences capable of being charged under this section largely because of the age of the complainant, however there is a very large number of offences covered by this one charge, which is a factual matter to be taken into account in determining the objective criminality.”

80. As for the s 66C offences, her Honour summarised her findings in relation to the offences against JW at [136]-[143] noting that they included a variety of offences both State and Commonwealth. At [137], she described all of the offences as “clearly enough serious” and noted that the maximum penalty for each of these s 66C offences is 10 years. At [141], her Honour noted that the complainant was only 14 or 15 years old at the time and that the applicant groomed her for the actual physical contact that occurred. Her Honour noted that the applicant filmed the activities and therefore produced child abuse material. She was satisfied that the complainant was clearly initially reluctant. There were also several forms of sexual intercourse in which he engaged, and he filmed it all. He was considerably older. Her Honour then concluded her consideration of the s 66C offences by finding the following at [142] and [143]:

“[142]   In my view all of counts 11, 13, 15, 16 and 17 fall at about the middle of the range in terms of objective seriousness for these reasons, or perhaps a little below, largely because of her age. I also bear in mind for the offence of aggravated indecent assault the fact that there is a standard non-parole period of 8 years which I must bear in mind, however because there is a plea of guilty, that does not apply strictly.

[143] I have come to the conclusion that each of the s 66C(3) offences ought give rise to a sentence of 4 years after taking into account the pleas of guilty. There are three of these on the first occasion and because they represent one episode of criminality, they should all be concurrent with each other.”

81. Her Honour also noted the victim impact statements that had been provided to her by some of the victims at [217]-[221] as follows:

“[217]   I indicate that I have read or had read to me, and considered, three victim impact statements from RW, JW and KB. Each of these complainants, I accept, has been adversely impacted as a result of their sexualised conduct with this offender. Even though there are no victim impact statements for the remaining seven victims of the sexual offences, I nonetheless accept that it is more likely than not that each of them has been adversely affected.

[218]   There is no specific separate evidence as such for any of the complainants of particular impacts on them, but I accept in the case of the three from whom there were victim impact statements read, that this offender has adversely affected their lives in many ways. Even without such statements, I accept that every one of these complainants of the sexual offences to a greater or lesser extent is likely to have some psychological scars as a result.

[219]   Clearly, that is the case for RW and JW. They were seriously abused by this offender who manipulated and exploited them, and the same applies to those others with whom he did not have direct contact but who ultimately came to understand exactly who they were dealing with and that is especially so for those who had been persuaded to send explicit photographs of themselves.

[220]   It is likely, in the experience of the Court, that all of them will to some extent or another engage in a form of self-blame, looking at events with the benefit of hindsight, and querying how this could have occurred. Hopefully, they will come to understand that they are in fact the victims of these offences and they should not blame themselves.

[221]   It is this offender who is to blame and their involvement was because of his skilled levels of manipulation. Hopefully, in the near future, each of them will come to terms with what has happened and move on to being survivors of child sexual abuse, laying the blame where it belongs, ensuring that their lives are in fact successful and have not been ruined by this offender.”

Ground 1: Complaint about totality

82. Under his first ground of appeal the applicant complained that the sentencing judge erred by not taking into account the 15-month sentence imposed by Arnott SC DCJ “by saying that he had served 12 months for exactly the same offences committed in exactly the same period”.

83. The applicant explained his complaint under this ground in his written submissions in this way: “The error that has occurred is H.H has only taken into account 12 months of that 15 month sentence s 6(3) of Criminal Appeal Act. I am seeking a resentence of those 3 months.”

84. This ground relies upon the misstatement at [223] I have extracted above. I am not satisfied that it establishes that her Honour proceeded on an incorrect basis as to the applicant’s previous non-parole period. That is because she correctly stated that non-parole period at [27] and she had a copy of Judge Arnott’s reasons before her with the correct effective non-parole period in any event. But even if, contrary to my finding, this misstatement at [223] was made because her Honour genuinely believed that the applicant had previously spent three months less in custody than he did, I am not satisfied that any such error could have the capacity to influence the sentences imposed.

85. Since Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 this Court is required to intervene and re-sentence an applicant if error is established, but only if that error has the capacity to influence the sentence: Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Basten JA); Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145] (N Adams J, Leeming JA agreeing), Benn v R [2023] NSWCCA 24 (“Benn”) at [82] (Gleeson JA, N Adams J and Ierace J agreeing). I am not satisfied that the misstatement has the capacity to influence the total sentence imposed.

86. The misstatement as to the applicant’s previous non-parole period occurred in the context of her Honour’s consideration of the totality principle. She stated at [223] that it was necessary for the sentence she imposed to reflect “the total criminality involved in all of this offending”. Her Honour went on to note the “added twist” that she had to take into account that for the same period covered by this offending, the applicant was imprisoned for “exactly the same offences committed in exactly the same time period”. Her Honour went on to expressly state that the offending which Judge Arnott dealt with was “part of the total criminality involved to take into account”.

87. Given the scope of the applicant’s offending, the number of victims and the myriad of charges, I am not satisfied that the understatement of the applicant’s previous non-parole period at [223] was an error which had the capacity to influence the sentence. Contrary to what the applicant appears to be contending, the question of backdating the sentence to commence part way through his previous non-parole period did not arise in this matter because the applicant had already been released on his RRO before he was arrested again. Even if he had, it would have been within her Honour’s discretion to have commenced the sentence at any time during that pre-existing sentence: Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145. As it stands, her Honour was simply noting that the offending took place over a period of time during which the applicant had already been sentenced for similar offending.

88. No error is disclosed under ground 1.

Ground 2: Failure to have regard to extra-curial punishment

89. This ground asserts that the sentencing judge erred in not having regard to the extra-curial punishment he experienced when he was assaulted in custody whilst on remand on strict protection. The applicant contends that the sentencing judge erred by not taking into account the seriousness of the assault and saying that prisons are comprised of only child abusers and paedophiles.

90. The applicant relies on Documents 3-9 in support of ground 2. Those documents appear to be part of the material that was tendered in support of the application for non-publication order for the applicant on 12 April 2018 referred to above at [56].

91. Document 6, which is four pages of Justice Health records, was also tendered as part of Exhibit 1 in the sentence proceedings. Those notes record that the applicant reported an assault to a nurse on 23 September 2016 who noted “minor pressure marks on his neck (Redness) visible”. Another record dated 27 September 2016 recorded the applicant’s complaint about an assault that lasted about 8-10 seconds. This was also referenced in the reports of Dr Richard Furst and Dr Ilanna Hepner tendered at the proceedings on sentence.

92. The applicant contends that the assaults said to have been inflicted on him in custody amount to extra-curial punishment in custody warranting mitigation of his sentence. The relevant principles are derived from decisions such as Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 where, after considering relevant authority, James J (with whom Tobias JA and Hulme J agreed) observed the following at [62]:

“I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.”

93. There are two hurdles for the applicant to overcome in relation to this ground. The first is that it was not squarely raised before the sentencing judge. There was no evidence before the court as to the reason for the assaults in the proceedings on sentence on 24 November 2017. The material that the applicant now relies upon was only put before her Honour on 12 April 2018 in the context of an application for a non-publication order of the applicant’s name in the pending sentencing judgment. As Johnson J (with whom McClellan CJ at CL agreed) observed in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81], in sentencing appeals to this Court:

“… [T]he Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made.”

94. The second hurdle is that there was insufficient material before her Honour at first instance to establish that the assaults were the result of these specific offences. As Wilson J (with whom Leeming JA and Davies J agreed) recently confirmed in Melville v R [2023] NSWCCA 284 at [80], albeit in the context of public opprobrium rather than physical assaults:

“It is important in determining this ground to be clear as to what may constitute extra-curial punishment and, conversely, what will not. Extra-curial punishment is ‘some serious loss or detriment’ suffered by an offender as a punishment upon him or her for committing the offence or offences, other than the punishment imposed by a court of law: R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 411; Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 at [29]. It is not the public condemnation that follows conviction for serious crime.”

95. The fact that an inmate is assaulted in custody, as regrettable as that is, does not of itself amount to extra-curial punishment. It will only do so if it is a loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence: Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 at [29] per James J with whom Hislop and Hoeben JJ agreed. The evidence before her Honour and this Court does not establish that to be the case.

96. As noted above, when the incident was discussed on 12 April 2018 during the application for a non-publication order, the Crown prosecutor informed her Honour that the applicant told the police officer that the dispute occurred as a result of him being “the type of offender he was in custody for, ie a person charged with sex offences”, but the alleged assailant provided different information and no further action was taken.

97. Even assuming that the issue of extra curial punishment was squarely raised before her Honour (as opposed to being the subject of an application for a non-publication order), it was open to her Honour to find that there was insufficient evidence to make such a finding. As for the comments made by her Honour during the application about assaults in custody generally (extracted above at [58]), although they are of little comfort to an inmate who is the subject of an assault in custody, they reflect the relevant law on this issue.

98. No error is disclosed under ground 2.

Ground 3: Delay and error in forensic examinations

99. The applicant submitted that there was delay by police in the forensic examination of all the electronic devices, which were not encrypted. In written submissions, he said he “lived with this uncertainty [and] the stresses in the prison system”. He adds, “I was compelled to contact [RW] with the continuous [sic] anxiety waiting for the knock on the door.”

100. There are circumstances in which delay can be a mitigating factor on sentence, but they do not arise in this case. Price J (with whom Button and Fagan JJ agreed) explained the relevant principles in Elchiekh v R [2016] NSWCCA 225 at [56]-[58]:

“[56]   Delay may be taken into account in favour of an offender: firstly, when it relates to the uncertain suspense in which a person may be left; secondly, when there is demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, because sentencing for a stale crime calls for a measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 (‘Todd’); R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16]. Where delay is relied upon as a mitigating factor, the onus is upon the offender on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47].

170. The applicant’s written and signed instructions from 2 June 2017 (Annexure A to Solicitor B’s affidavit) provided the following:

“I, Barbaros Ocek, instruct my legal representatives [Barrister B] (of Counsel) & [solicitor B] (solicitor) that I do not wish to dispute the fact that I was committed for sentence because I wish to preserve

(a) My discount which would be available for a timely please of guilty which I understand in my case would be a maximum 25%.

(b) I wish to avoid the application of the Standard Non-Parole Periods which would apply at the time of sentence should I stand trial and be found guilty by the jury.

[Barrister B] had advised me and I accept that if I were to dispute the matter which I flagged in my handwritten notation of the statement of facts then I would be traversing my plea which means I would face a trial. I do not wish to face a trial

…

[Barrister B] has not pressured me to give these instructions & I give them voluntarily and freely.”

175. On 2 June 2017, the ODPP was advised that the disputed facts had been resolved.

176. During cross-examination at the hearing of this appeal, the applicant confirmed the written instructions he provided to his lawyers and signed on 2 June 2017 (T 12.9-13.28). He agreed that he signed every page of the statement of agreed facts on sentence and Form 1s on 5 June 2017, the day Barrister B appeared for him at the sentence hearing. In response to a question from the Crown appearing on this appeal, he stated the following:

“Q. You understood also that you would be sentenced on those agreed facts?

A. Yes.

Q. It’s fair to say even if you now regret having acted on the advice that you received?

A. Madam, it was not so much regret, there was a lot of arguing, there was a lot of disputes and areas that I wanted looked at, material that I wanted put before her Honour. And we argued and argued and I felt pressured, time was running out, I was going to end up with a longer sentence. It was said to me it might go to trial if I keep traversing the way I’m going and not making up my mind. There was a lot of stern talkings, and, yes, I did sign all that.” (T 14.14-24)

177. As set out above, the applicant’s proceedings on sentence before Judge Tupman continued on 5 June 2017 but were stood over part heard until 24 November 2017.

178. On or about 28 July 2017, the applicant made a complaint to the NSW Legal Aid Commission relating to the conduct of Barrister B and Solicitor B which was dismissed. On 26 October 2017, in response to the applicant’s complaint and request of transferal of legal aid, Legal Aid denied the application because “the reasons given were not compelling enough”.

179. Following this, Barrister B and Solicitor B continued to represent the applicant in his part-heard sentence proceedings.

180. On 22 November 2017, an AVL conference was held between Barrister B, Solicitor B and the applicant. The applicant sought to reagitate the facts by suggesting they indicated the conduct occurred on too many occasions. Solicitor B’s conference note (Annexure B to his affidavit) records that Barrister B told the applicant that “[you]’ve had a measure of success and don’t understand why you’re mentioning it”. The applicant said, “can we not reverse those? Mistakes made”, to which Barrister B responded that it could only be reversed if the applicant pleaded not guilty.

181. The applicant also stated during that conference that he believed the Facebook messages should be tendered as they show that he did not threaten RW. Barrister B advised him against this as it would not “assist [the applicant] in any way” and said that “they [the Crown] believe by examining [Facebook messages] [there] may be other charges”. The applicant also said “we had consensual sex all afternoon” to which Barrister B responded “[you] threatened her [with] knife that consensual? Judge will assess I don’t have to”.

182. On 24 November 2017, Barrister B, instructed by Solicitor C, appeared for the applicant before Judge Tupman at the part heard sentence proceedings. The applicant was conferred with in the cells on three occasions throughout the day. Barrister B made case notes recording the fact that the applicant wanted the Facebook entries tendered on his sentencing proceedings. The contemporaneous notes of that conference record that counsel’s advice was that the material would not assist him and that it would increase his sentence. The notes record counsel saying to the applicant about the Facebook entries:

“Its horrendous shows u as a bully, as a brute. You’ll have to give the express instructions again my firm instructions. What about small part But Im making submission she wasnt forced to have sex”

183. As stated above, after the proceedings on sentence that day the matter was stood over to 2018. Around the end of 2017 or the beginning of 2018, Solicitor B withdrew from representing the applicant which meant Barrister B’s involvement also ceased. The applicant’s third barrister appeared on 12 April 2018 (as described above at [56]).

The Facebook messages

184. Before turning to consider Barrister B’s evidence concerning the allegations made against him, it is pertinent at this stage to extract some of the entries that the applicant claims his lawyers were incompetent in not putting before the court. The material before the Court shows that there was an ongoing difficulty in persuading the applicant that any advantages to challenging the signed agreed facts which might be able to be established by the tender of the Facebook entries were significantly outweighed by the prejudicial nature of that material to his plea.

185. In his affidavit of 29 October 2022 (Documents 7 and 8) in which he annexes selected portions of the Facebook material, the applicant stated this about the conferences with Barrister B and Solicitor B on 24 November 2017:

“Both lawyers read this material whilst in court and gave me advise [sic] that I should not use this, as it would only make H.H. Tupman angry and that it would not assist me in this matter. I sat back in disbelief and have now lived with this regret, having the belief that this material could of [sic] assisted me.”

186. I note that the Facebook extracts relied upon by the applicant are selective and the extract below comes from the version relied upon by the Crown on this appeal. I have attempted to avoid detailing the nature of the applicant’s sexual offending in these reasons given their explicit nature but, regrettably, it is not possible to highlight how misplaced the applicant’s persistent position that he would have got a lesser sentence if the Facebook entries were tendered without extracting some of them. The following extracts are taken from messages between RW and the applicant between 25 March 2012 and 1 April 2012:

“[Applicant]   An can b arrested for prostitution u hav been selling ur body 4 gifts an money that is prostitution u can b arrested an charged for that

If u get me charged I’ll get u charged for prostitution I hav all the proof u asking 4 things all the time 4 sex

…

[Applicant]   I want my phone back this sat or I’ll come take it simple

…

[RW]   I just said I dont want to have sex anymore im not even old enough

and when I save up il be happy enough to give the phone back

[Applicant]   An I’ll tell every1 at ur school ur not a virgin an [C] will to

[RW]      so be it i knew it was a mistake to meet u

[Applicant]   I’m not fucking waiting 4u to save no this sat at 11 an ring u can keep other stuff

She will tell [J] an all ur friends an ur family ur been fucking a guy 4 phone an I will go to ur school as well an tell [J] an every1

…

[Applicant]   But sex is sex lol

Have u fucked [J] yet

[RW]     no we are underage

[Applicant]   Two young people can fuck it no big deal lol

[RW]     we would rather wait for that

[Applicant]   Okay that’s good I guess but I was 13 when I started having sex an loved it ever since

[RW]     but I never atchuly wanted to do that but I did

and I dunt want to do it with hima t that age

[Applicant]   An u do like it a bit I can tell

[RW]     no I don’t

?

…

so did u guys liek do it in her bed or sometihng?

lol

[Applicant]   Yep but not regular sex the 1 u don’t like lol

[RW]      lol k haha

did she like it?

[Applicant]   Yes cause her pussy is way to tight lol

[RW]      lol k

[Applicant]   Funny thing I can hardly get 1 finger in her pussy but can get 2 fingers in her bum an my cock of course

…

[RW]      leave me alone

dont you ever feel bad about anything!

…

[Applicant]   Is that y u sell ur body to guys to get money an stuff just like a common prostitute fuck how sad

[RW]   just go away obviously because of you im not doing that anymore and so what if I did everyone does bad things in there life u fuck younger girls that are not even aloud to have sex yet

[Applicant]   An u fuck older guys so how does that make u any better ?

[RW]   because its not as grose

[RW]   but there is one thing i don’t threaten the other persons life or relationships

[Applicant]   How is it not I wonder how many guys u have fucked 4 money an gifts I no I’m not the only 1

An u love sex an getting money

[RW]   ok you are the first i hate sex and now I hate getting into this situations thanks to u

…

i am prettysure ur home by now

if I dont get credit im wont c u again

babe?

and btw if u didnt have phne why did u say that you had the phone there on the table?

[Applicant]   I will give ur iPhone 3 back on the long weekend an another habbo card that’s a fair deal an I’m still a bit hurt by u scamming me an plus we only have quick sex only couple of times not like at first

…

Y r u still trying to scam phone

Y ru still trying to scam phone bak

Y ru still trying to scam phone bak

Y ru still trying to scam phone bak

Do we need to tell [J]

Do we need to show him sex vids

…

[RW]   Im not telling you because I HATE YOU because u had to go ahead and threaten me

you wouldnt leave me alone when i said I just wanted to be me, im sick of having sex and im sick of you guilt tripping me for things when ur using me for sex!”

187. The applicant submitted that these Facebook messages with RW show that he was threatening her to get her to return his phone, rather than to have further sexual relations with him. He relied on these messages to show that his legal advisers were incompetent for not advising him to tender the messages. The following statement by the applicant during the hearing captures the essence of his complaint:

“So it’s showing that there was no threats for sex, it was like an agreement so to speak. I would buy her gifts and credits and whatever and we’d have sex. And then I say do you-- do I need to because she is withholding giving it back and I said ‘do we need to show [J] your videos?’.” [T 41.5-8]

188. As for the police statement of GG relied upon under this ground, she was a friend of RW and provided evidence of complaint. She stated that RW went on a date with “Alex” (the applicant’s online false persona). In her statement at [8] and [9] she states:

“8. [RW] told me that when she met with Alex, an older man of about 40 years of age and of Indian appearance showed up and posed as Alex’s dad. [RW] told me that the man drove [RW] to his house and continued to pose as Alex’s dad. [RW] told me that the man said that Alex was in his room. [RW] told me that she knew at that stage that Alex did not exist, but felt fearful.

9. [RW] then told me that the man raped her in his house. …”

189. Then at [10] GG states that RW told her that “somehow she had met up with this man three or more times” and at [12] that the man took her to Mardi Gras “and she felt that she was drugged”.

190. The applicant contended that this statement should have been used to challenge RW’s credit and get the agreed facts amended. That was on the basis that in the Facebook entries RW told the applicant that she had a good time on the Mardi Gras weekend.

Barrister B’s response to the applicant’s claims

191. Barrister B provided a comprehensive affidavit based on the available file notes and other documents in response to the allegations made against him by the applicant on this appeal. He disputed that the applicant was ever “forced” to sign anything. He set out in detail what happened in the cells on 5 June 2017 and explained that, in his opinion, the factual dispute raised was “extremely narrow in compass” and that given the facts had already been signed and the victims had already read their victim impact statements there was “simply no scope for a contested facts hearing after what had transpired.”

192. As for the complaint about failing to tender the Facebook material, Barrister B deposed that he believed at the time that the tender would be counter­productive to receiving an advantageous sentence. He had instructions not to do so. As to the complaint that he failed to “give appropriate advice on the second statement of RW and how it interacted with the statement of GG”, Barrister B deposed that the applicant did not seek his advice about this issue and that to the best of his recollection and belief, the applicant never raised GG as a topic for discussion.

193. Finally, as to the complaint that he failed to advise the applicant regarding the statement of facts for committal for sentence in relation to RW, Barrister B (who did not appear for the applicant until after those first facts were signed) explained the circumstances of RW’s two statements as follows:

“37. In relation to RW, she provided a number of witness statements which were relied on by the Crown in drafting the facts on sentence. One of those witness statements was dated 18 November 2014, but signed on 29 January 2015. Each of the seven occasions referred to in the agreed facts were reflected in that latter witness statement being first occasion on 26 January 2012 (paras [6] to [24]), second occasion on 11 February 2012 (paras [26] to [40]), third occasion (penile-vaginal penetration in the bathroom) in the weeks prior to 23 February 2012 (paras [59] to [67]), fourth occasion on 21 February 2012 (a few days before the applicant's birthday) (paras [60] to [64]), fifth occasion on day of Mardi Gras march 2012 (paras [41] to [56]), sixth occasion a few weeks after the applicant's birthday (paras [77] to [84]), and seventh occasion on 17-18 March 2012 (paras [86[ to [90]). Each of the above occasions were conceptually distinct in RW's witness statement and were anchored to dates either before or after the applicant's birthday or to Mardi Gras in 2012.

38. In addition to the above, evidence of the applicant's offending against RW as reflected in the Statement of Facts for Committal for Sentence signed 5 June 2017 was also supported by a number of videos of having sexual intercourse with RW, as well as Facebook messages (referred to above) where the applicant discusses having sex with RW.

39. In response to the applicant's contention that the second and third occasions took place on the first occasion, being 26 January 2012, that contention is not supported by the evidence of RW in her witness statement. The contention is also inconsistent with the statement of agreed facts for sentence that the applicant signed on 23 August 2016 which indicated that only para 44 of the second occasion was in dispute (and that paras 43, 45 to 48 of that occasion were not), and that none of the third occasion were in dispute (paras 50 to 58).

40. In response to the applicant's contention that fourth occasion could not have happened as outlined in the fact, that contention is not supported by the evidence of RW in her witness statement and is also inconsistent with the statement of agreed facts for sentence that the applicant signed on 23 August 2016 which indicated that the 4th occasion was not in dispute (paras 60 to 64).

41. In response to the applicant's contention that the sixth and seventh occasions occurred at the time of the first occasion, that contention is not supported by the evidence of RW in her witness statement. The contention is also inconsistent with the statement of agreed facts for sentence that the applicant signed on 23 August 2016 which indicated that in relation to the sixth occasion (paras 74 to 81, only para 75 in part was in dispute), and the seventh occasion was not in dispute.”

194. Barrister B gave the following evidence in cross-examination:

“Q. …Can I take you to page 3 paragraph 7 number 2, failure to tender 15 to 20 pages of Facebook material in sentence proceedings which so demonstrated gross contradictions in the evidence of RW. Do you agree that I did bring that material to court and wanted it presented?

A. I agree that you wanted your Facebook material presented to court, tendered to court but that’s not the end of my answer because ultimately you provided instructions to not tender that material based on advice I gave you.

Q. And the advice being that it would not assist me at all?

A. Yes.

Q. And it would increase my sentence?

A. Potentially.

Q. Yes in your handwritten notes?

A. Also that it was counterproductive to what I perceived to be what you really want to which was an advantageous sentence to yourself.

…

WARD ACJ: I see.

Q. The proposition [Barrister B] that is being put to you is that the Facebook material that Mr Ocek wanted to tender would’ve established that he wasn’t present on the birthday occasion.

A. I don’t accept that.” (T 30.1-39)

195. In re-examination Barrister B gave evidence that he was firm in his evidence to the applicant on the issue of the Facebook material and the applicant gave him instructions not to tender it (T 33.8-10).

Conclusion on ground 11

196. Having considered all of the complaints made by the applicant, none of them has any merit.

197. I am not satisfied that the applicant was pressured to sign the agreed facts such that the proceedings on sentence miscarried. It is abundantly clear that, in the face of a very strong Crown case, his lawyers were seeking to obtain the best result for him which included protecting the discount from his early plea and that he freely signed the agreed facts in the context of his lawyers’ advice.

198. As for the Facebook entries, having read through them, they simply do not assist the applicant’s case. The applicant’s contention that Barrister B “had not brought himself up to speed” with them (T 34.5-9) must be rejected as the contemporaneous notes record him giving advice to the applicant about them. The applicant’s insistence that the Facebook entries showed that RW got certain dates wrong demonstrates a misunderstanding of the significance of those entries. Even if, contrary to the sound advice of his counsel, there had been a hearing on the disputed facts in which RW was cross-examined and her credit attacked, anything to be gained by that would be outweighed by the loss of a discount for his early plea of guilty.

199. As for the fact that RW called the applicant “babe” at one stage during the Facebook exchanges, contrary to what the applicant might contend, that is not a mitigating factor. RW was a 14 year old child and the applicant was in his 40s and groomed her.

200. As for the claim that the Facebook entries showed he was threatening RW to get a phone he gifted her back from her rather than pressuring her for sex, as the extract above shows, RW did feel that she had been pressured for sex and the ugly nature of the applicant’s threats to report her as a prostitute are incapable of mitigating his case in the manner in which the applicant contends.

201. The fact remains that the Facebook messages included multiple threats to a child through other children to intimidate or publicly shame her. They demonstrate the scope of the applicant’s manipulative grooming. They included admissions to other serious offending, including offending the applicant had previously denied such as the “Mardis Gras incident”.

202. As for the complaint that his legal representative failed to act on his instructions to reactivate his Facebook account, Barrister B advised the applicant of the difficulties and delays of doing so, including that reactivation required the support of the Federal Attorney General to the US Attorney General under the Mutual Assistance in Criminal Matters Act 1987 (Cth), and a possible 12-month delay. I note in this regard that Document 10 in the applicant’s tender bundle is a letter he wrote to Mark Zuckerberg on 4 March 2019 seeking a copy of his “list of friends” at the time his account was shut down.

196. The applicant agreed in cross-examination that the instructions he gave to Barrister B in annexure A were given voluntarily and freely, the notes were accurate, he agreed after legal advice and understood the factual basis for the sentence (T 12.9-14.41).

197. The applicant contended that the statement of GG casts doubts as to RW’s credit (T 49.30-32). It is difficult to see how that statement, which confirms that RW did not know she was meeting an adult male (contrary to the applicant’s submission in this Court), that she said that the man she met “raped” her and that she felt like she had been drugged on the Mardi Gras weekend could assist his case either.

198. Overall, I am satisfied that the applicant’s lawyers did everything they could to act in the applicant’s best interests. The applicant continues to fail to understand that matters that he believes would help his case would in fact harm it.

199. No error is established under this ground.

Grounds 4 and 8: Manifest excess

The remaining complaints under grounds 4 and 8 were of manifest excess.

207. Under grounds 4 and 8, the applicant complained that the indicative sentences for the s 66EA(1) offence (count 3) and the s 66C(3) offences with JW (counts 11, 14, 15, 16 and 17) are manifestly excessive. It was submitted that the sentence of 15 years imprisonment with a non-parole period of 10 years for count 3 was manifestly excessive.

208. For count 3, the applicant contended that the sentencing judge found that the offending was in the medium range. He also relied on cases that were said to be comparable and considered Hitchen v R [2010] NSWCCA 77 and Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504 in some detail.

209. The applicant also relied on R v Wright [2017] NSWCCA 102 for ground 8. In that case, an aggregate sentence of 3 years and 3 months with a non-parole period of 1 year and 10 months was imposed in respect of four offences contrary to s 66C(3) and one contrary to s 66EB(2) to which the respondent had pleaded guilty. Further offences were taken into account on a Form 1. The court found that the aggregate sentence was manifestly inadequate but declined to intervene in the exercise of its residual discretion.

Consideration: Grounds 4 and 8

210. The relevant principles applicable when a sentence is said to be manifestly excessive have been re-stated by this Court on many occasions. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and N Adams J agreed) provided the following summary of the relevant principles to apply when considering a ground of appeal asserting manifest excess at 241:

"When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust."

211. Although her Honour imposed a discrete sentence on count 3, she imposed an aggregate sentence under s 53A of the Sentencing Act for the offences against JW, some but not all of which were the s 66C(3) offences. Although the appeal is against the aggregate sentence, error in relation to an indicative sentence may be a guide as to whether there was an error in the aggregate sentence. As Wright J observed in Merheb v R [2021] NSWCCA 224 at [77] (Payne JA and Price J agreeing):

“[W]hen an aggregate sentence is challenged on the ground of manifest excess the following principles are also applicable:

(1) an indicative sentence is not itself amenable to appeal, although error in relation to an indicative sentence may be a guide as to whether there is error in the aggregate sentence; and

(2) where an indicative sentence is assessed as being manifestly excessive, it does not necessarily follow that an aggregate sentence is manifestly excessive- the relevant question in that circumstance will be whether the aggregate sentence reflects the totality of the criminality involved: Jackson v R [2021] NSWCCA 15 at [116] (Price J, Hoeben CJ at CL and Fagan J agreeing); JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39] and [40] (RA Hulme J, Hoeben CJ at CL and Adamson J agreeing).”

212. Turning first to the claim that the sentence imposed on count 3 was manifestly excessive, I have extracted above her Honour’s findings at [104] as to why she arrived at the sentence she did. She assessed the objective seriousness as being “at the very least at the middle of the range of offences capable of being charged under this section and possibly into the top of the range”. Her Honour was only satisfied that it did not fall “at the very top of the range” for offences capable of being charged under s 66EA “largely because of the age of the complainant”.

213. The applicant did not present a favourable subjective case on sentence. Beyond his early plea of guilty, there was little by way of mitigation available to him. He was diagnosed as suffering from a substance abuse disorder, paedophilia and a recurrent major depressive disorder with his most significant diagnosis being of paedophilia. He did not have favourable prospects of rehabilitation and nor was her Honour satisfied of any genuine remorse given that he had expressed remorse on previous occasions and gone on to reoffend.

214. The applicant was on parole for a violent sexual assault at the time of the offending in relation to count 3. General and specific deterrence loomed large in the sentencing exercise.

215. Against a maximum penalty of 25 years the applicant received a sentence of 15 years, after a discount of 25%. It is to be accepted that the starting point must have been 20 years imprisonment which is a stern sentence, but it included Form 1 matters and did cover considerable offending in the context of the production of child abuse material and threatening behaviour.

216. Significantly, count 3 was only one of 38 counts that the applicant faced and his total non-parole period for the other 37 offences against ten other victims was only five years longer. Even if it was considered that the sentence on count 3 was manifestly excessive (which, on balance, I do not), the ultimate question is whether, after the application of the totality principle, the total effective sentence was manifestly excessive. In a complicated sentencing exercise such as this, complaints about individual sentences must be considered in the context of the overall sentenced imposed.

217. Turning to the complaint under ground 8 about the sentences imposed for the offences contrary to s 66C(3) on JW, it is based on a false premise because the aggregate sentence imposed for the offences committed against JW concerned a number of different offences including the s 66C(3) counts. Despite this, as stated above, a complaint as to the severity of indicative sentences can inform the question of whether an aggregate sentence is manifestly excessive. The applicant received an aggregate sentence of imprisonment of 6 years with a non-parole period of 4 years in respect of counts 10-17 inclusive.

218. The indicative sentences for the five offences contrary to s 66C (counts 11 (including five Form 1 matters), 14, 15, 16 and 17) were all 4 years imprisonment. The other offences which formed part of the aggregate sentence were grooming a child for unlawful sexual activity, producing child abuse material and indecent assault which all carried a maximum penalty of 10 years imprisonment. In the context of all of that offending, her Honour imposed an aggregate term of 6 years imprisonment with a non-parole period of 4 years.

219. As is evident from the portion of her Honour’s remarks, which I have extracted above, her Honour explicitly addressed the principle of totality and made counts 11, 13, 14 and 15 notionally concurrent. These offences were serious and included sentencing for showing JW the child abuse material concerning RW.

220. As for the applicant’s reliance upon the other decisions I have referred to above, they are of little assistance given the scope of the applicant’s offending in the context of the application of the totality principle.

221. The applicant received a significant sentence, but he was being dealt with for significant criminality. The applicant has not established that the overall effective sentence imposed on him was plainly unjust.

222. No error is established under either of these grounds.

Proposed orders

223. For the reasons given above, I would propose the following orders:

1. An extension of time to bring this appeal is granted.

2. Leave to bring this appeal is granted.

3. The appeal is dismissed.

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Decision last updated: 06 December 2023