PC v R

[2022] NSWCCA 107

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

PC v R [2022] NSWCCA 107

Hearing dates:

4 May 2022

Date of orders:

27 May 2022

Decision date:

27 May 2022

Before:

The Court (Bell CJ, Kirk JA, Price J)

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence – child sexual assault – whether error in taking into account abuse of a position of trust where for offences under s 66C(2) the victim being under the authority of the offender was an element of the offence – whether error in failing to explain abuse of trust and abuse of authority – relationship between father and daughter – where reasons provided by judge for finding breach of trust as an aggravating factor – whether sentence manifestly excessive – need for general deterrence in child sexual assault

Legislation Cited:

Crimes Act 1900 (NSW), ss 61H(2), 61M(2), 61O(1), 66A(1), 66C(2), 66C(5)(d)

Crimes (Sentencing Procedure) Act 1999 (NSW),

ss 21A(2), 21A(2)(k)

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Beavis v R [2018] NSWCCA 248

Franklin v R [2016] NSWCCA 319

Griffin v R [2018] NSWCCA 259

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MRW v R [2011] NSWCCA 260

Parker v R [2021] NSWCCA 175

Pym v R [2014] NSWCCA 182

R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60

Vaiusu v R [2017] NSWCCA 71

Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

PC (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/12551

Publication restriction:

A non-publication order was made in relation to anything that might identify the victim including the identity of the applicant

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

04 December 2020

Before:

Baly SC DCJ

File Number(s):

2020/12551

HEADNOTE

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

PC (‘the applicant’) pleaded guilty to two counts of sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW); four counts of sexual intercourse with a child of or above the age of 10 years and under the age of 14 years in circumstances of aggravation contrary to s 66C(2) of the Crimes Act; and one count of indecent assault on a person aged under 16 years contrary to s 61M(2) of the Crimes Act.

Seven charges were also placed on a Form 1, which were: five charges of sexual intercourse with a child of or above the age of 10 years and under the age of 14 years in circumstances of aggravation contrary to s 66C(2) of the Crimes Act; and, two counts of indecent assault on a person aged under 16 years contrary to s 61M(2) of the Crimes Act.

The applicant was the father of the complainant, who was aged between 8 or 9 and 12 years old at the time that the offences were committed.

The applicant sought leave to appeal from his sentence on the following grounds:

1 The sentencing Judge erred in determining that the offences 5, 11, 4, 9, 10 and 12 were aggravated by a factor that was an element of these offences; and

2 The sentence imposed is manifestly excessive and a different sentence is warranted at law.

Whether the sentencing Judge erred in determining that the specified offences were aggravated by a factor that was an element of these offences

(i) It was not raised by the applicant’s counsel in the court below that her Honour would be double counting by taking into account a breach of trust for the s 66C(2) offences. This Court is a court of error and not a forum for the revision and reformulation of the case made before the sentencing judge. Applicants must establish a “miscarriage of justice or serious injustice” for the Court to entertain intervention: [63]-[64] (The Court).

Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44; Pym v R [2014] NSWCCA 182; Griffin v R [2018] NSWCCA 259, cited.

(ii) The applicant criticised a passage of the judge’s remarks on sentence. It was submitted that the judge erred by taking into account the aggravating factor of the victim being “under the authority of” the offender in relation to all offences because abuse of authority or abuse of trust were inherent in the offences charged under s 66C(2) of the Crimes Act, which had built into them a relationship of authority: [70]-[71] (The Court).

(iii) There is a difference between an offender being in a position of authority and the offender abusing that position of authority. In the context of sexual assault of a child by a father, the position of authority will inevitably have been abused by the father where such an assault is found to have taken place. This does not, however, make abuse of authority an element of the offence charged in the strict sense: [72] (The Court).

(iv) The concepts of abuse of authority and abuse of trust are also distinct, and caution should be exercised when sentencing in order to avoid an offender being punished twice. The degree of trust between a father and child may vary in any given case and may depend, for example, on the age and particular circumstances or character of the father and/or the child: [73], [77] (The Court).

(v) The judge emphasised the particular circumstances which constituted a breach of trust between the father and his child. The judge identified these circumstances clearly and explained the finding of aggravation about which the applicant complains and went beyond an abuse of authority. No error has been demonstrated: [81], [84] (The Court).

MRW v R [2011] NSWCCA 260; Parker v R [2021] NSWCCA 175; Franklin v R [2016] NSWCCA 319; Beavis v R [2018] NSWCCA 248, considered.

Whether the sentence imposed is manifestly excessive and a different sentence is warranted at law

(vi) The applicant did not complain about the judge’s findings on objective seriousness nor did the applicant refer to any indicative sentences as providing guidance for the assessment of error in the aggregate sentence nor did the applicant rely on comparable cases. The applicant did not challenge the judge’s characterisation of the objective gravity of each offence. The judge reduced the applicant’s sentence by having regard to his subjective case, finding special circumstances and bearing in mind the principle of totality: [88]-[91] (The Court).

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited.

(vii) The judge did not refer to general deterrence. The need for general deterrence is not to be overlooked when considering the applicant’s complaint of manifest excess. The sentence appropriately reflects the totality of the criminality involved in the applicant’s offending and his subjective circumstances. The sentence is not manifestly excessive: [92]-[94] (The Court).

R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60, referred to.

Judgment

1. THE COURT: On 4 December 2020, PC (‘the applicant’) was sentenced in the District Court at Goulburn to an aggregate term of imprisonment of 16 years with a non-parole period of 9 years.

2. The applicant pleaded guilty to two counts of sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW); four counts of sexual intercourse with a child of or above the age of 10 years and under the age of 14 years in circumstances of aggravation contrary to s 66C(2) of the Crimes Act; and one count of indecent assault on a person aged under 16 years contrary to s 61M(2) of the Crimes Act.

3. Seven charges had also been placed on a Form 1. These charges were:

1. Five charges of sexual intercourse with a child of or above the age of 10 years and under the age of 14 years in circumstances of aggravation contrary to s 66C(2) of the Crimes Act; and

2. Two counts of indecent assault on a person aged under 16 years contrary to s 61M(2) of the Crimes Act.

4. Judge Baly SC (‘the judge’) took into account the seven Form 1 offences when sentencing the applicant for the offence identified in the Table below as sequence 5. The Table, which was helpfully provided by the Crown, provides the maximum penalties for the offences, the nominal starting points before a 25% discount for the pleas of guilty were applied and the indicative sentences.

Charge	Offence	Indicative sentence	Nominal starting point before discount	Maximum penalty / Standard Non-Parole Period
H73011227 Sequence 4	On 28 May 2019 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 12 years, aggravated (under authority) s 66C(2) Crimes Act 1900 (LPC 93694)	6 years with a NPP of 3 years and 7 months	8 years with a NPP of 4 years 9 months and 11 days	Maximum penalty: 20 years SNPP: 9 years
H73011227 Sequence 5 With 7 charges on a Form 1	Between 29 June 2015 and 11 February 2017 – sexual intercourse with a child under the age of 10 years, namely 8 to 9 years S 66A(1) Crimes Act 1900 (LPC 85915)	9 years with a NPP of 5 years and 4 months (taking into account the Form 1)	12 years with a NPP of 7 years and 1 month and 11 days	Maximum penalty: Life imprisonment SNPP: 15 years
H73011227 Sequence 7	Between 29 June 2015 and 11 February 2017 – indecent assault person aged under 16 years, namely 8 to 9 years S 61M(2) Crimes Act 1900	2 years and 3 months and a NPP of 1 year and 4 months	3 years with a NPP of 1 year and 9 months and 11 days	Maximum penalty: 10 years SNPP: 8 years
H73011227 Sequence 9	Between 1 January 2019 and 31 January 2019 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 11 years, aggravated (under authority) S 66C(2) Crimes Act 1900 (LPC 93694)	6 years with a NPP of 3 years and 7 months	8 years with a NPP of 4 years and 9 months and 11 days	Maximum penalty: 20 years SNPP: 9 years
H73011227 Sequence 10	Between 1 October 2017 and 31 October 2017 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 10 years, aggravated (under authority) S 66C(2) Crimes Act 1900 (LPC 87910)	4 years and 6 months with a NPP of 2 years and 8 months	6 years with a NPP of 3 years and 6 months and 21 days	Maximum penalty: 20 years SNPP: 9 years
H73011227 Sequence 11	Between 12 February 2016 and 11 December 2019 [1] – sexual intercourse with a child under the age of 10 years, namely 9 years S 66A(1) Crimes Act 1900 (LPC 85915)	7 years and 6 months with a NPP of 4 years and 6 months	10 years with a NPP of 6 years	Maximum penalty: Life imprisonment SNPP: 15 years
H73011227 Sequence 12	Between 12 February 2017 and 31 December 2017 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 10 years, aggravated (under authority) S 66C(2) Crimes Act 1900 (LPC 87910)	3 years and 3 months with a NPP of 3 years and 1 month	4 years and 4 months with a NPP of 4 years and 1 month and 11 days	Maximum penalty: 20 years SNPP: 9 years

1. The Crown’s written submissions advise that the Court Attendance Notice (CAN) was incorrect. The end date on the CAN says 11 December 2019, when it should have said 11 December 2017.

Grounds of Appeal

5. The notice of appeal identifies the following grounds:

Ground 1

The sentencing Judge erred in determining that the offences 5, 11, 4, 9, 10 and 12 were aggravated by a factor that was an element of these offences.

Ground 2

The sentence imposed is manifestly excessive and a different sentence is warranted at law.

Details of the Offences

6. The facts were agreed for the purposes of sentence and were summarised by the judge in the remarks on sentence.

7. The applicant and his wife were the parents of a number of children including the victim who was born on 12 February 2007.

8. The applicant’s family lived on a sheep farm in regional New South Wales. All of the offences took place on this property.

9. From around 2015 to 2018, the farm was quarantined for footrot and the sheep could not be sold. The applicant began working at a logging company during the nights. He worked from 4am to 11am and so he began sleeping in the guest bedroom from about the start of May 2019.

10. At about 10pm on 28 May 2019, the applicant’s wife got a drink of water. She went into the guest room where she saw the applicant kneeling behind the victim on the floor. His pants were down. He pulled them up when he saw her. The victim was on her hands and knees and her bottom was exposed. The victim told her mother that the applicant had been having sexual intercourse with her for “ages”.

11. The applicant’s wife confronted the applicant. He admitted the allegations, stating that he was a bad person and had turned into a monster that he hates. He said it had been going on for four years. He collapsed on the floor.

12. The applicant’s mother was called and when she arrived he admitted to molesting the victim. He said he may as well kill himself. The applicant said: “These acts have been happening for years. I have an urge that I couldn’t stop. I love [the victim] too much. She knows everything.”

13. The police were not notified at the time. The applicant’s wife moved out with the victim. At that time the victim did not want to report to the police. At that time the victim’s brother decided to stay living with his father. The applicant had supervised contact in public places with the victim.

14. In late 2019 the victim became aware that the applicant had started a relationship with a woman who had a young daughter. She was concerned about the welfare of the woman’s daughter and so she reported these offences to the police. The victim participated in three separate interviews with the police.

15. The victim told police that the sexual abuse was a regular occurrence over four years. She described to the police that the applicant would regularly bribe her to perform fellatio on him in exchange for money, food and gifts.

First interview – 7 January 2020

H73011227 Sequence 5 – s 66A(1) Crimes Act 1900 – sexual intercourse with a child under the age of 10 years, namely 8 to 9 years

FORM 1 – H73011227 Sequence 6 – s 61M(2) Crimes Act 1900 – indecent assault person aged under 16 years, namely 8 years

16. The first incident occurred when the victim was eight or nine. The applicant woke the victim when she was asleep in her bedroom. He took her into a shed and had the victim perform fellatio upon him (sequence 5). He then committed an indecent assault upon her by placing his penis between her thighs (sequence 6).

FORM 1 – H73011227 Sequence 3 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 12 years, aggravated (under authority)

H73011227 Sequence 4 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 12 years, aggravated (under authority)

17. The last incident occurred on 28 May 2019, when the victim was aged 12 years. She was asleep in her bedroom when the applicant woke her. He took her to the lounge room where he had her perform fellatio upon him (sequence 3). He then took her to the guest bedroom where he forced his penis into the victim’s anus. She told him she did not want it, yet he forced this act upon her. She continually said “no” and she cried. The applicant told her to stop crying and it would be alright. The applicant’s wife walked in and caught the applicant doing this act (sequence 4).

Second interview – 15 January 2020

H73011227 Sequence 7 – s 61M(2) Crimes Act 1900 – indecent assault person aged under 16 years, namely 8 to 9 years

18. Between 29 June 2015 and 11 February 2017, when the victim was eight or nine, the applicant and victim were inside the shearing shed on the property when he rubbed his penis between the victim’s thighs for about 10 minutes. The victim said this type of offending occurred on many occasions in this shed.

H73011227 Sequence 11 – s 66A(1) Crimes Act 1900 – sexual intercourse with a child under the age of 10 years, namely 9 years

19. Between 12 February 2016 and 11 February 2017, when the victim was nine, the applicant took her to the office near the guest bedroom and told her to lay on her stomach. He rubbed his penis between her thighs and after a few minutes he got up and told her to put her mouth over his penis. He ejaculated in her mouth and told her to swallow it. She complied. She felt like she was going to vomit.

H73011227 Sequence 12 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 10 years, aggravated (under authority)

20. Between 12 February 2017 and 31 December 2017, when the victim was 10, the applicant told her he was going to “wee inside her”. The applicant’s wife had been sleeping in the victim’s bed because the applicant was snoring, and the victim was sleeping in her parents’ bed with the applicant. He had penile-anal intercourse with her and ejaculated into her anus.

H73011227 Sequence 10 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 10 years, aggravated (under authority)

21. In October 2017, when the victim was aged 10 years, her mother went on holiday. The applicant told her to sleep in bed with him. He performed cunnilingus upon her. She told him to stop and he did. She went to sleep in her own bed.

FORM 1 – H73011227 Sequence 8 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 11 years, aggravated (under authority)

H73011227 Sequence 9 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 11 years, aggravated (under authority)

22. On a night in January 2019, when the victim was 11, she got out of bed to go to the bathroom. She said “goodnight” to the applicant. He had her perform fellatio upon him (sequence 8). He then took her to the shed and performed penile-anal intercourse on her for five to seven minutes. She cried in pain and asked him to stop many times. He said: “Don’t cry. You’re going to be fine.” He did not stop despite the victim having a panic attack (sequence 9). He then moved to the corner of the shed where he masturbated until he ejaculated.

Third interview – 30 January 2020

FORM 1 – H73011227 Sequence 15 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 10 years, aggravated (under authority)

23. Between 12 February 2017 and 11 February 2018, when the victim was aged 10 years, she was in the shower at one point whilst her mother was at work. The applicant came in and got in the shower. He had her perform fellatio until he asked her to stop.

FORM 1 – H73011227 Sequence 16 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 10 years, aggravated (under authority)

24. Between 12 February 2017 and 11 February 2018, when the victim was aged 10 years, she was in a truck with the applicant on the property. He had her perform fellatio on him for about 30 seconds.

FORM 1 – H73011227 Sequence 14 – s 66C(2) Crimes Act 1900 – sexual intercourse with a child of or above 10 and under the age of 14 years, namely 10 years, aggravated (under authority)

25. Between 12 February 2017 and 11 December 2019, when the victim was 10 or 11 years old, the applicant and the victim were at home. He asked her to perform fellatio on him. She said she did not want to. He said he would buy her a Lego set if she did. She performed the act and he bought her the Lego set.

FORM 1 – H73011227 Sequence 13 – s 61M(2) Crimes Act 1900 – indecent assault person aged under 16 years, namely 11 years

26. The victim turned 11 years old on 12 February 2018 and in the days following her birthday, the family and some friends were camping out on the property. The victim could not fall asleep in her swag so she was sleeping with the applicant in his swag. She complied when he told her to remove her pants and roll on her side, so she was facing away from him. The applicant rubbed his penis between her thighs for about five minutes.

The Applicant’s arrest

27. On 14 January 2020, the applicant attended the local police station by arrangement where he was arrested and charged. He was interviewed but declined to respond to questions.

The Proceedings on Sentence before the Judge

28. In addition to the agreed facts, the Crown tendered a sentencing assessment report (‘the report’) and a NSW Police Report which showed that the applicant had no prior criminal history.

29. When referring to the applicant’s insight into the impact of the offending, the author of the report recorded that the applicant identified because he had “fallen in love” with the victim, this somehow justified his behaviour in his head “even though ‘deep down’ he knew his actions were horrendous”. The applicant had not attempted to minimise his offending, explaining that if he could take it back, he would “do anything” to do so.

30. The applicant was assessed at a Medium/Low Risk of re-offending according to the Level of Service Inventory. He was born on 13 June 1966.

31. The victim read her victim impact statement, which included the serious impact the applicant’s offending had on her and her family. She described the great loss and grief she felt in not experiencing a safe and supportive relationship with her father as well as her feelings of being unsafe and uncomfortable around males in general. She had not only lost her father and his side of the family but a brother who she had thought truly loved her. The victim also related that when her father was sexually abusing her, she wanted to kill herself. She hated herself and wondered “why me?” When her father did not stop when she told him to, she was suicidal and described feeling “even more worthless”.

32. The applicant did not give evidence before the judge, but five testimonials were tendered in his case. Her Honour noted the absence of any reference to the offences in the testimonials and observed that the testimonials could not attract much weight.

33. A written apology from the applicant was also tendered in which the applicant acknowledged that he could not repair any of the damage that he had caused. He apologised from “the depths of [his] heart” to the victim.

34. Written submissions from the parties were also tendered. In view of Ground 1 of the appeal, it should be noted that in the applicant’s submissions, his counsel stated:

“It is inarguable that the offending involved an extremely serious breach of his daughter’s trust.”

35. The Crown submissions referred at some length to the breach of trust. Under that heading, the Crown stated:

“It is an obvious aggravating feature that the offender was in a position of trust and violated that trust by sexually assaulting the victim.”

The Remarks on Sentence

36. After summarising the agreed facts, the judge noted that the applicant’s counsel conceded that the offending was extremely serious. Her Honour made the following general observations:

1. No offence was an isolated one. The offending was regular over a four year period when the victim was between 8 or 9 and 12;

2. The applicant ceased offending when caught in the act by his wife. He did not cease voluntarily;

3. There was some coercion and on occasion force was used; and

4. The offences did escalate in terms of their seriousness.

37. For the sake of convenience, the judge referred to each of the offences by their sequence number.

38. The judge then turned to assessing the objective seriousness of each count. As to sequences 5 and 11, which were contrary to s 66A(1) of the Crimes Act, her Honour noted that the maximum penalty was life imprisonment. Her Honour said that sequence 5 was when the victim was eight or nine and had been asleep when the act of fellatio took place. Her Honour found this offence to be in the mid-range in terms of seriousness.

39. After recounting that sequence 11 was when the victim was nine and, on that occasion, the applicant had performed fellatio and made the victim swallow his ejaculate, her Honour assessed the offence to fall above mid-range.

40. As to sequences 4, 9, 10 and 12, which were all offences contrary to s 66C(2) of the Crimes Act, the judge observed that sequence 4 was anal intercourse when the victim cried and said “no” repeatedly. The applicant callously told her to stop crying and continued. Her Honour found this offence to be above mid-range on account of the force used and the pain caused to the victim.

41. Her Honour said that sequence 9 involved a similar incident where the victim was in pain, cried and had a panic attack. Her Honour found that this offence fell above mid-range. After recounting that sequence 10 involved an act of cunnilingus of short duration, her Honour found that the offence fell below the mid-range.

42. As to sequence 12, which was an act of anal intercourse where the applicant ejaculated, her Honour found that the offence fell at the mid-range.

43. Sequence 7 was an act of indecent assault, an act of rubbing the applicant’s penis on the victim’s thighs, and her Honour found this offence to be in the mid-range. Her Honour said that she did not intend to categorise the matters on the Form 1.

44. The judge went on to say:

“There are two distinct aggravating factors in this case. Each of the offences is significantly aggravated by a gross and egregious breach of trust. This breach of trust by a father on his daughter is one of the grossest breaches of trust imaginable. The offender exploited his own young and innocent daughter for his own sexual gratification. He grossly abused the trust reposed in him as her father. He should have been her protector. This aggravating factor must attract considerable weight in this sentencing exercise.”

45. The second aggravating factor, her Honour said, was that the offences occurred in the victim’s home where she was entitled to feel safe and secure, especially in her own bedroom. Her Honour observed that “[t]his aggravating factor is another which must attract some weight”.

46. When referring to the victim impact statement, the judge found that the impact of the offending had been profound and devastating. Her Honour noted that the victim emphasised that on account of the applicant’s offending, she had lost family members. Her Honour also noted the victim’s emphasis upon her telling her father to stop, which he would not, and how hard it was for her to come forward in a small community where the applicant was highly regarded. The judge said that the victim was a person of great courage and dignity and had shown maturity beyond her years.

47. The judge made the following findings as to the applicant’s subjective case which were mitigating factors in his favour:

1. he had demonstrated a high level of remorse;

2. was highly unlikely to re-offend; and

3. had good prospects of rehabilitation.

48. The judge observed that the Form 1 matters were numerous and serious and would add to the length of the sentence for the sequence 5 offence.

49. Her Honour said there was a need for partial, notional accumulation in the aggregate sentence to be imposed. The offences involved separate and discrete criminality over four years. The principle of totality required, her Honour said, that she “sentence for the total criminality”.

50. Special circumstances were found being the applicant’s first and only custodial sentence, his good prospects of rehabilitation and the need for additional assistance upon release.

51. After allowing a 25% discount, her Honour specified the indicative sentence for each count and imposed an aggregate term of imprisonment of 16 years commencing on 14 January 2020 and expiring on 13 January 2036 with a non-parole period of 9 years. The applicant will be eligible for parole on 13 January 2029.

Ground One: The sentencing Judge erred in determining that the offences 5, 11, 4, 9, 10 and 12 were aggravated by a factor that was an element of these offences

Argument

52. The applicant’s complaint is founded on the passage from the judge’s sentencing remarks which is quoted at [44] above. The applicant submitted that it appeared that her Honour had taken into account abuse of a position of trust as an aggravating factor for all of the offences for which he was to be sentenced. In doing so for the offences under s 66C(2) of the Crimes Act where one of the elements of that offence was that it occurred whilst the victim was under the applicant’s authority, it was submitted that the judge had erroneously double counted an aggravating factor.

53. Although the judge did not make an express reference to s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’), the applicant submitted that it could be inferred that her Honour was referring to that section which provides as an aggravating factor to be taken into account on sentence:

(k) the offender abused a position of trust or authority in relation to the victim.

54. The applicant pointed out that s 21A(2) provides:

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

55. Another submission was that the judge had not mentioned that there was a difference between the concepts of abuse of trust and abuse of authority which the applicant contended disclosed error.

56. In oral argument in this Court, Ms Kluss, the applicant’s counsel, contended that in this case, the applicant’s breach of trust derived from his position of authority over his daughter and double counting had occurred. Ms Kluss cited Parker v R [2] (‘Parker’).

    2. [2021] NSWCCA 175.

57. Ms Kluss’ “fallback argument” was that if the judge had not double counted, her Honour had erred by giving undue weight to the abuse of a position of trust where abuse of authority was an aggravating factor.

58. Ms Kluss made it clear that the applicant’s complaint of error included the s 66C(2) offences on the Form 1.

59. The Crown argued that the global approach taken by the judge did not disclose error as her Honour was entitled to consider that the s 66C(2) of the Crimes Act offences were aggravated by the “breach of trust” notwithstanding those offences contained “under authority” as an element of the offence.

60. The Crown pointed to MRW v R [3] (‘MRW’) in which this Court recognised that the concepts of position of authority and position of trust are qualitatively different.

    3. [2011] NSWCCA 260.

61. In oral argument, Ms Wilkinson SC, counsel for the Crown, submitted that “abuse of authority” or “abuse of trust” are not elements of a s 66C(2) offence. In making this submission, the Crown referred to the definition of “under the authority” in s 61H(2) of the Crimes Act.

62. A further submission was that the judge did not place undue weight on the applicant’s breach of trust.

Consideration

63. In the proceedings on sentence before the judge, the applicant’s counsel accepted that the applicant’s offending involved “an extremely serious breach of his daughter’s trust”. [4] No submission was made below that by taking into account a breach of trust for the s 66C(2) offences, her Honour would be double counting.

    4. See [34] above.

64. This Court has stated on many occasions that it is a court of error and not a forum for the revision and reformulation of the case made before the sentencing judge. Arguments not advanced in the court below will only be entertained in “rare” circumstances such as to correct a “miscarriage of justice or serious injustice”. [5]

    5. Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, [81]-[82] (Johnson J); Pym v R [2014] NSWCCA 182; Griffin v R [2018] NSWCCA 259.

65. In any event, the Crown did not submit that this Court should not entertain the applicant’s arguments, but contended that error had not been established.

66. Section 21A(2) of the Sentencing Act sets out a series of aggravating factors that must be taken into account when determining the appropriate sentence for an offence, including whether “the offender abused a position of trust or authority in relation to the victim”: s 21A(2)(k).

67. Section 21A(2) goes on to provide that “[t]he court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence” (Emphasis added). This important qualification to s 21A(2) is no doubt because where an aggravating factor is embedded in the offence as an element of it, that circumstance of aggravation generally results in a higher period of maximum punishment being prescribed in respect of the offence.

68. The qualification in s 21A(2) was relied upon by the applicant to mount an attack on the sentence imposed by the judge in relation to offences under s 66C(2) of the Crimes Act. That provision provides that a person who has sexual intercourse with a child between the ages of 10 and 14 in circumstances of aggravation commits an offence punishable by a maximum penalty of imprisonment for 20 years. Section 66C(5)(d) in turn defines “circumstances of aggravation” to include circumstances in which the victim is “under the authority of” the offender. This was the relevant circumstance of aggravation particularised in each of the counts under s 66C(2) to which the applicant pled guilty.

69. Section 61H(2) relevantly provides that “a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.”

70. Standing out for particular criticism in the applicant’s submissions was the passage from the judge’s remarks quoted at [44] above.

71. It was submitted that the judge erred by taking this matter into account for all offences because abuse of authority or abuse of trust were inherent in the offences charged under s 66C(2), which had built into them a relationship of authority.

72. Ms Kluss oscillated in her submission as to whether or not “abuse of authority” was an “element of the offence” under s 66C(2). In the context of sexual assault of a child by a father, the position of authority will inevitably have been abused by the father where such an assault is found to have taken place. This does not, however, make abuse of authority an element of the offence charged in the strict sense; cf. MRW at [77]–[78], where Bathurst CJ said:

“There can be little doubt, in my opinion, that the matters referred to in s 21A(2)(k), namely abuse of trust and abuse of authority, are distinct concepts although commonly arising out of the same facts. As only the latter of the two concepts formed an element of the offence, in my opinion, it was open to the trial judge to take the former factor into account as an aggravating feature on sentencing.

However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court. However, the judge committed no error in taking abuse of a position of trust into account in sentencing the appellant.” (Emphasis added)

73. What Bathurst CJ no doubt had in mind when he said in MRW that “abuse of authority” formed an element of the offence was the fact that, where there has been a sexual assault of a child by a parent, there will necessarily have been an abuse of authority. MRW’s significance lies in the distinction recognised in that case between abuse of authority and abuse of trust. The concepts are treated distinctly in s 21A(2)(k) of the Sentencing Act although they will often be related or overlap, hence the need for caution that a person is not in effect punished twice.

74. In Parker, when re-sentencing the appellant for an offence of an aggravated act of indecency with a victim under 16 years contrary to s 61O(1) of the Crimes Act, and an offence contrary to s 66C(2) – the aggravation in both crimes being that the victim was under authority – Davies J (with whom Hamill and Wilson JJ agreed) said at [129]:

“In the present case, the abuse of trust derived from the applicant’s position of authority over C. Counts 2 and 8 are not aggravated by the breach of trust, but it is an aggravating factor for the other counts.”

75. In Parker, the offender was the foster parent of C. Before deciding that the offences were not aggravated by the breach of trust, Davies J cited what Bathurst CJ said in MRW at [77]-[78].

76. We do not understand what was said by Davies J in Parker to prevent an abuse of trust being taken into account as an aggravating factor where under authority is an element of the offence as each case will depend on the relationship between the offender and the child and the circumstances of the offending.

77. The degree of trust between a father and child may vary in any given case and may depend, for example, on the age and particular circumstances or character of the father and/or the child. It could not be said that “abuse of trust” is an element of the offence created by s 66(C)(2) of the Crimes Act. What we have described as the qualification in s 21A(2) does not preclude that matter being taken into account, and that is what the sentencing judge did in the present case in the passage attacked on appeal.

78. In written submissions, the applicant referred to Franklin v R [6] (‘Franklin’) and Beavis v R [7] (‘Beavis’) and submitted that her Honour’s sentencing remarks made no mention of the difference between the concepts of abuse of authority and abuse of trust, and her Honour had erred. In Franklin, R A Hulme J (with whom Macfarlan JA and Bellew J agreed) said at [75]:

“The problem in the present case is at a more basic level: the sentencing judge stated that there were these two aggravating features but he did not explain why, in the circumstances of the case at hand, they were aggravating. There is also nothing to indicate that the judge saw a distinction between a breach of trust and a breach of a position of authority; if he did, he did not explain what it was.”

6. [2016] NSWCCA 319.

7. [2018] NSWCCA 248.

79. In Beavis, the Court (Ward JA, Bellew and Beech-Jones JJ) held similarly to Franklin that the sentencing judge erred as she had not adverted to or at least maintained a distinction between a breach of trust and a breach of authority. [8]

    8. [2018] NSWCCA 248, [255].

80. Error was found in Franklin and Beavis as the sentencing judge in each case did not explain why the aggravating factors had been determined.

81. In the present case, the judge placed express emphasis on breach of trust and the particular circumstances of the daughter’s age and innocence that aggravated the offending which was committed by a person (the father) in a position of authority. Her Honour’s identification of these circumstances clearly explained the finding of aggravation about which the applicant complains and went beyond an abuse of authority. No error has been demonstrated.

82. As to the applicant’s “fallback argument” of undue weight being given to abuse of a position of trust, matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined. [9]

    9. Vaiusu v R [2017] NSWCCA 71, [29]; Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49, [25].

83. In our view, the circumstances of the applicant’s serious sexual offending justified her Honour’s finding of significant aggravation by a “gross and egregious breach of trust”.

84. There was no error by the judge. We would dismiss Ground 1 of the appeal.

Ground Two: The sentence imposed is manifestly excessive and a different sentence is warranted at law

Argument

85. The applicant contended that the aggregate sentence was manifestly excessive. The applicant argued that her Honour’s error in double counting abuse of a position of trust in respect of the s 66C(2) offences would have had an impact on the indicative sentences for these offences and must have impacted the aggregate sentence. The applicant further submitted that the offending was with one victim, albeit it was over three to four years. During that time, maximum penalties changed as well as relevant standard non-parole periods. The applicant submitted that the aggregate head sentence was at a level more commensurate with offences of far higher criminality and without the mitigating factors found by the judge.

86. The Crown pointed to the maximum penalties for the offences and to the offences on the Form 1. The Crown submitted that her Honour’s departure from the statutory ratio after finding special circumstances was particularly generous. The Crown emphasised the importance of general deterrence in child sexual assault cases.

Consideration

87. In order to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [10] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [11]

    10. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (‘Markarian’) at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

    11. Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

88. The applicant’s complaint of double counting in the s 66C(2) offences has been unsuccessful. The applicant does not complain about the judge’s findings of the objective seriousness of any of the offences or the applicant’s subjective case. Neither does the applicant point to any of the indicative sentences as providing guidance for the assessment of error in the aggregate sentence nor does the applicant rely on comparable cases.

89. The victim is the applicant’s daughter. Over a four year period when she was between 8 or 9 and 12 years old, the applicant’s heinous offending towards his young daughter included fellatio and penile-anal intercourse for his own sexual gratification. The impact on the victim has been traumatic and will be long-lasting. The applicant’s counsel in the sentencing proceedings before the judge correctly described the applicant’s offending as extremely serious.

90. The judge was aware of the seriousness of the offending and her Honour’s characterisation of the objective gravity of each offence has not been challenged. The statutory guideposts for the s 66A(1) offences were life imprisonment and a standard non-parole period of 15 years and for the s 66C(2) offences, 20 years’ imprisonment and a standard non-parole period of 9 years. For the sequence 5 offence, five of the charges that were taken into account on the Form 1 were contrary to s 66C(2).

91. Her Honour reduced the applicant’s sentence by having regard to his subjective case and bore in mind the principle of totality. Special circumstances were found resulting in a favourable adjustment of the statutory ratio between the balance of term and the non-parole period of 56%.

92. In her sentencing remarks, the judge did not mention general deterrence which has long been recognised as an important consideration when imposing sentences on adults who sexually abuse children. In R v BJW,[12] Sheller JA (James and Dowd JJ agreeing) said at [20]:

“… The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A CrimR 151 at 154. In R v Hudson (unreported) CCA, 30 July 1998 at 3 Sully and Ireland JJ with whom Spigelman CJ agreed, said:

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

12. (2000) 112 A Crim R 1; [2000] NSWCCA 60.

93. The need for general deterrence is not to be overlooked when considering the applicant’s complaint of manifest excess.

94. In our view, the sentence appropriately reflects the totality of the criminality involved in the applicant’s offending and his subjective circumstances. The sentence is not manifestly excessive.

Orders

95. Accordingly, the Court makes the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

**********

Endnotes

Amendments

31 May 2022 - Headnote (i) typographical error amended

05 December 2022 - Par [7] year changed to 2007

Par [31] changed "her" to "his" side of the family ...

07 December 2022 - Par [16] deletion of "Between 29 June 2015 and 11 February 2017" for consistency with emboldened sequences

Decision last updated: 07 December 2022