PN v R

[2024] NSWCCA 86

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

PN v R [2024] NSWCCA 86

Hearing dates:

17 April 2024

Date of orders:

5 June 2024

Decision date:

05 June 2024

Before:

Wilson J at [1];
Chen J at [76];
Huggett J at [77]

Decision:

(1) Leave to appeal is granted;

(2) The appeal is dismissed.

Catchwords:

CRIME – appeal against sentence – child sexual assault offences – where indicative term for a count relating to anal penetration was higher than the indicative term for counts relating to vaginal penetration – where applicant argues this indicates error by sentencing judge – whether ratio of indicative sentences establishes error – question of manifest excess

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

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

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 9, 33, 53A

Crimes Act1900 (NSW), ss 66A, 66DA, 66EB, 91G

Crimes Act 1914 (Cth), ss 16B, 16BA

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Code Act 1995 (Cth), s 474.22A

Cases Cited:

AJ v R [2023] NSWCCA 158

Clarke v R [2023] NSWCCA 170

Cullen v R [2014] NSWCCA 162

Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153

Grange v R [2023] NSWCCA 6

Hraichie v R [2022] NSWCCA 155

JM v R [2014] NSWCCA 297

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

Maxwell v R [2020] NSWCCA 94

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

PC v R [2022] NSWCCA 107

R v BH [2023] NSWCCA 278

R v Clarke [2013] NSWCCA 260

R v CMB [2014] NSWCCA 5

R v Gavel [2014] NSWCCA 56

R v JJ [2009] NSWCCA 148

R v M.A.K., R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v MJB [2014] NSWCCA 195

R v Van Ryn [2016] NSWCCA 1

R v Wheeler [2000] NSWCCA 34

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

Ryan v R [2019] NSWCCA 200

Salama v R [2023] NSWCCA 141

SW v R [2013] NSWCCA 255

Category:

Principal judgment

Parties:

PN (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Odgers SC (Applicant)
A Bonnor (Respondent)

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

File Number(s):

2021/00251576

Publication restriction:

Statutory non-publication order in relation to complainant

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 170

Date of Decision:

19 May 2023

Before:

Coleman SC DCJ

File Number(s):

2021/00251576

JUDGMENT

1. WILSON J: By notice of appeal of 1 February 2024 the applicant who, in compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) will be referred to here by the pseudonym PN, seeks leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him for 14 State offences on 19 May 2023, by his Honour Judge Coleman SC in the District Court. If granted leave the applicant seeks to advance three grounds:

1. The aggregate sentence was imposed in error by reason that the sentencing judge determined a manifestly excessive sentence for count 12.

2. The aggregate sentence was imposed in error by reason that the sentencing judge failed to carry through his intention with respect to the determination of non-parole periods for counts 4-13.

3. The aggregate sentence is manifestly excessive.

2. The applicant pleaded guilty to an indictment containing 15 counts. Fourteen of the charges were for State offences, with the applicant asking the sentencing court to take into account a further 13 offences on two Form 1 documents, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He also pleaded guilty to one Commonwealth offence on the same indictment and asked that a second charge be taken into account when sentence was passed for that offence, pursuant to s 16BA of the Crimes Act 1914 (Cth). The sentence imposed to address the State offences was an aggregate term of imprisonment for 37 years with a non-parole period (“NPP”) of 25 years; the sentence imposed for the Commonwealth offending was a term of 3 years imprisonment. The latter sentence commenced on 2 September 2021 and will expire on 1 September 2024. The State sentence commenced on 2 September 2022, allowing one year of accumulation between the two terms. The non-parole period (“NPP”) expires on 1 September 2047, whilst the head sentence expires on 1 September 2059.

3. The total effective sentence is one of 38 years imprisonment with a total effective NPP of 26 years: R v PN [2023] NSWDC 170.

4. The count, offences, relevant statutory provisions, maximum penalties, any standard non-parole period (“SNPP”), offences taken into account where applicable, and indicative sentences, are set out below. Each indicative term allowed for a discount on sentence of 25% to recognise the early pleas of guilty. The victim of the offending in each instance was the applicant’s young niece.

Count	Offence	Maximum Penalty	Indicative Sentence
1	Procuring a child under 14 years for unlawful sexual activity s 66EB(3) Crimes Act1900 (NSW)	12 years imprisonment; SNPP of 5 years	4 years and 6 months imprisonment; NPP 3 years and 2 months
2	Use child under 14 years to produce child abuse material, in circumstances of aggravation (under 10 years) s 91G(1)(a) Crimes Act	14 years imprisonment; SNPP of 6 years	7 years and 6 months imprisonment; NPP 5 years and 3 months
3	Intentionally touch child under 10 years s 66DA(a) Crimes Act Five further such offences taken into account on a Form 1	16 years imprisonment; SNPP of 8 years	6 years and 9 months imprisonment; NPP 4 years and 9 months
4	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	13 years and 6 months imprisonment; NPP 10 years
5	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	15 years imprisonment; NPP 11 years and 3 months
6	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	15 years imprisonment; NPP 11 years and 3 months
7	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	13 years and 6 months imprisonment; NPP 10 years
8	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	13 years and 6 months imprisonment; NPP 10 years
9	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	13 years and 6 months imprisonment; NPP 10 years
10	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	15 years imprisonment; NPP 10 years and 3 months
11	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	13 years and 6 months imprisonment; NPP 10 years
12	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	16 years and 6 months imprisonment; NPP 12 years and 4 months
13	Sexual intercourse with child under 10 years s 66A(1) Crimes Act	Life imprisonment; SNPP of 15 years	13 years and 6 months imprisonment; NPP 10 years
14	Intentionally touch child under 10 years s 66DA(a) Crimes Act Eight further such offences taken into account on a Form 1	Life imprisonment; SNPP of 15 years	4 years and 6 months imprisonment; NPP 3 years and 2 months
15	Possess child abuse material accessed by a carriage service, with prior conviction s 474.22A(1) Criminal Code Act 1995 (Cth) Offence of using a carriage service to transmit child abuse material to self, with prior conviction, contrary to s 474.22(1) of the same Act taken into account on a s 16BA Form	Maximum 15 years imprisonment Minimum 4 years imprisonment

The Proceedings in the District Court

5. Although this matter proceeded as a committal for sentence, entitling the applicant to the 25% discount on sentence that was afforded to him, the applicant was arraigned on 28 April 2023 before the District Court upon an indictment charging the fifteen offences set out above. He again entered pleas of guilty. He also acknowledged his guilt for all offences that were before the court to be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act and s 16B of the Crimes Act 1914 (Cth).

The Crown Case

6. The Crown case consisted of a statement of the facts of the offences (signed by the applicant to acknowledge its accuracy), the applicant’s criminal and custodial histories, and a victim impact statement from the victim, who will be referred to here by the pseudonym AN. The facts are disturbing and will be outlined here only in summary form.

7. The applicant is AN’s paternal uncle. He is also a “registrable person” under the Child Protection (Offenders Registration) Act 2000 (NSW), following a conviction in 2009 for a child sex offence.

8. In mid-2018 the applicant began living with AN and her family, residing with the family for 13 or 14 months before moving to a separate address in the same town. He maintained regular contact with his brother’s family, frequently offering to assist them by caring for AN and her brothers.

9. The offending came to the attention of police after a report from Google that child abuse material had been transferred to a Google account that the applicant operated. An initial inspection was made of his electronic devices and images of AN that constituted child abuse material were found. The applicant was interviewed and made some limited admissions to having touched and photographed AN, claiming that he did so at her request. AN was also interviewed and gave an account of the applicant having groomed and touched her sexually. She also described cunnilingus.

10. A forensic examination of the applicant’s multiple devices was then conducted, and more than 990 unique images or videos of AN were detected. Some of the images of AN depicted body parts only. The applicant was forensically linked to some images in which his hands were shown, enabling examiners to identify him by fingerprints. Messages in which the applicant described his sexual attraction to and fantasies about female children, including his niece, were also found. Specific correspondents were identified. It is not intended here to set out the content of any messages. On the whole of the material, the charged offences and others that were not charged were able to be particularised.

11. Count 1, a grooming offence charged as occurring between April 2017 and September 2021, encompassed conduct that commenced when AN was 6 years of age, when the applicant sent a message to the mobile phone AN used in which he told her he wanted to have sex with her. Attached to the message was a photograph taken of AN asleep in a “fort” she had constructed from blankets. She replied, “stop it”. There were five or six occasions when the applicant sent AN a photograph of his penis. He told AN not to tell anyone. The applicant also took photographs of AN in sexual poses on many occasions; he told police this was done at AN’s instigation, with images of his hand manipulating her genitals supposedly taken because AN wanted to see her vagina.

12. The applicant also sent numerous text messages to AN that were of a sexual nature, including a message sent in 2020 when AN was nine years old in which he inquired if she loved him, asking to “sniff [her] panties and kiss [her] pussy”. In a similar message sent a month later the applicant asked nine-year-old AN, using different, more prurient, language than recorded here, if he could see, kiss, and photograph her genitals. AN responded “fuck off”, to which the applicant replied, “be ready for it then”. Calling her “baby”, he also told her he loved her “so much”.

13. In 2021, on AN’s 10^th birthday, the applicant sent a series of messages, addressing AN as “baby”, in which he told her he loved her, asked her if she loved him, and asked to kiss her ten times in “our special place”. AN’s response was to say she loved her pet dog.

14. Count 2 is an aggravated offence of using AN for the production of child abuse material ^[1] , charged between July 2019 and March 2021. The circumstance of aggravation is the age of AN, who was under 10 years, being eight and nine years old. Between the dates averred the applicant frequently filmed AN in a state of undress, in sexual poses, or as he committed a sexual offence against her. The facts referred to six specific incidents when AN was aged eight when the applicant used her to create multiple images of Category 1 child abuse material; two incidents when both Category 1 and 2 material was created; and 3 incidents when multiple images of Category 2 material was created. When she was aged nine, there were four specific occasions noted when multiple Category 1 images were created and three occasions involving the use of AN to produce multiple Category 2 images. These incidents were separate to incidents reflected by a sexual touching or sexual assault charge, offences that were revealed by the images found by police.

    1. Child abuse material, referred to internationally as child exploitation material, is categorised according to an international scale, generally known as the Interpol Baseline Scale. Category 1 material refers to sexually suggestive or sexual images of children under 13 with a focus on genitalia. Category 2 material includes images of a child under 16 years engaged in sexual activity.

15. Count 3 charges an offence of sexual touching of a child under 10 years that occurred on 19 July 2019 when AN was aged eight. The applicant manipulated AN’s genitals with his fingers, taking photographs of what he did. Five other offences of sexual touching of a child under 10 were taken into account on sentence for count 3. Each incident occurred when AN was 8 years old. There were three incidents identical in nature to count 3; in addition to one where the applicant pulled AN's underwear to the side and placed his penis against her genitals, touching her underwear; and one where the applicant photographed himself pulling AN’s underpants down to expose her genitals.

16. Counts 4 to 13 are all offences of sexual intercourse with a child under 10 years, AN being eight at the material times. Each was discovered through photographs or films the applicant had taken of the acts.

17. Counts 4 and 5 occurred on 2 September 2019. The applicant penetrated AN’s vagina with his finger or fingers (count 4); and then inserted his penis into her mouth (count 5). Other acts during this incident were photographed but did not appear on the indictment or on any Form 1 document. The photographs depicted AN kissing the tip of the applicant’s penis; and holding the applicant’s penis whilst poking her tongue out.

18. Counts 6, 7, and 8 occurred on 9 September 2019. The applicant manipulated AN’s exposed vagina with his fingers and then penetrated her vagina with his penis (count 6). Count 7 involved an act of cunnilingus, whilst count 8 was an incident of digital-vaginal penetration.

19. Counts 9 and 10 took place on the morning of 23 September 2019. Count 9 reflected the applicant’s act in inserting his finger or fingers into AN’s vagina. He then inserted his penis into her mouth (count 10). The applicant filmed this last act.

20. Counts 11, 12, and 13 occurred later on the same day, at around 6pm. The applicant inserted his finger or fingers into AN’s vagina (count 11), before digitally penetrating her anus (count 12). The final act, count 13, reflected digital-vaginal penetration. The last two acts were filmed and photographed.

21. Count 14 charged sexual touching of a child under 10. It occurred in July 2020 when AN was aged nine years. The applicant moved AN’s legs to expose her genitals and touched her vagina with his fingers. Eight further offences of this nature, all of which occurred when AN was nine years of age, were taken into account when sentence was imposed for count 14. Six of the offences reflect separate incidents when the applicant touched AN’s vagina with his fingers. Two reflect separate incidents when the applicant pulled down AN’s underwear to expose her vagina.

22. Count 15 is an offence of possessing child abuse material accessed by a carriage service, where the applicant had previously been convicted – in 2009 – of a child abuse offence. This offence encompassed the vast number of child abuse images found by police on the applicant’s electronic devices. Across the applicant’s devices and electronic accounts police detected 1090 images or videos of Category 1 material and 221 images that fell within Category 2. Some 990 of those images were unique images of AN.

23. Taken into account when sentence was imposed for count 15 was the related offence of using a carriage service to transmit child abuse material. On or around 31 August 2021 the applicant transmitted a number of images to his Google account to be stored. On an automated analysis of 91 files uploaded to the applicant’s account, Google detected 86 that appeared to contain child abuse material. In 36 of the files, images of a pubescent child engaged in a sexual act were recorded, whilst 8 files depicted a pre-pubescent child so engaged; 17 files contained images of a pubescent child in a sexual pose, with a further 25 files depicting a pre-pubescent child in such a pose.

24. Having been alerted by Google to the material the applicant had stored in his Google account, police arrested the applicant on 2 September 2021. Two mobile phones and a laptop computer were seized, as were various digital cameras and hard drives. When interviewed the applicant admitted taking sexual photographs of AN “over a couple of months”. He claimed that he had done so at AN’s request, with incidents of sexual touching, including “kissing” AN’s genitals, also at her request.

25. In an interview between police and AN, AN recalled that the applicant had begun approaching her sexually within a few days of him moving into her family’s home; the photograph he had sent to her showing her asleep in a blanket fort, with an accompanying request for sex, had been taken on the day he moved into the house. She said the applicant often came into her bedroom or the bathroom when she was dressing or showering, and frequently rubbed her body and genitals with his hands. She recalled five occasions when he had used his tongue and teeth to suck on her vagina, and other occasions when he had touched her chest area with his hands, and her chest, buttocks and genitals with his penis.

26. The applicant’s criminal history contained an offence of larceny from 2001 with respect to which no conviction was recorded, together with the offence that had made him a registrable person. The latter was a conviction recorded in 2009 for a 2007 offence of aggravated indecent assault, the circumstance of aggravation being that the assault was against a child under 16 years of age. A bond for 18 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act (as that provision was at the material time) was imposed, with a condition that the applicant accept the supervision of the Probation Service.

27. The applicant’s custodial history contained nothing of note.

28. The final document in the Crown case on sentence was a victim impact statement from AN who, although her age was not stated, must have been 11 or 12 years old when she wrote it. AN said that, since the offending, she had lost confidence and felt unable to do new things or things that she had previously enjoyed, such as gymnastics. She felt unable to confide in others and struggled with her emotions. She frequently became angry and sometimes lashed out at family. She also felt unable to be physically close to others, avoiding the touch even of her parents. AN said that she had begun to struggle with food, sometimes refusing to eat whilst at other times binge eating. She had begun hoarding food in her bedroom. She suffered from sleeplessness.

The Subjective Case

29. The offender’s case was very limited. He did not give evidence but relied upon a report of Dr Katie Seidler, psychologist, prepared on 11 April 2023 for the purposes of use before the sentencing court. Dr Seidler saw the applicant over an audio-visual link for a period of about 90 minutes. Psychometric testing could not be carried out because of time limitations, and the history obtained from the applicant was brief, in part for the same reason. The applicant engaged readily with Dr Seidler but was “clearly uncomfortable” in discussing sexual matters. Dr Seidler formed the impression that the applicant’s account in this area was “sanitised, minimised, and distorted”, probably for the purpose of “positive image management”. His thought processes were logical and coherent, although he seemed anxious and was occasionally distressed. He gave a history of a happy, supportive childhood and formerly loving relationships with his parents and siblings. He said that he suffered some bullying at school but nevertheless completed his schooling, attaining a Higher School Certificate. He subsequently completed several vocational courses and was consistently employed. The applicant did not abuse drugs or alcohol and did not have any addictive behaviours. His health was good, and he had never consulted a mental health professional.

30. The applicant denied any deviant sexual activities and reported that he had been married and had an adult son. After the breakdown of his marriage, which he said occurred because his wife wished to move to be closer to her family, he did not have much contact with his son. He had lived alone prior to his arrest and experienced some loneliness. His wife had been his only sexual partner.

31. The applicant claimed to be interested in heterosexual adult relationships and denied collecting pornography. When challenged about the child abuse material he had in his possession at the time of arrest he suggested the images were of teenage girls. He denied any sexual interest in AN, a claim Dr Seidler thought implausible, and demonstrated a confused understanding of consent and attitudes to sexual contact with children. His account of the offences was “distorted, irresponsible, and victim blaming”. He said he had limited memory of his 2009 conviction, claiming that he accidentally touched a 13-year-old girl on the outside of her clothing. Dr Seidler regarded his account as sanitised and his claimed amnesia as unlikely.

32. Since entering custody, the applicant said that he had experienced some disadvantage due to the COVID-19 pandemic – although Dr Seidler observed that he had been less affected than other prisoners – and initially found it hard to adjust to prison life. At the time of the assessment, he was more settled and felt safe. He had not received any visits from his family, as they had severed contact with him due to the offences. Dr Seidler observed,

“…when pushed, [PN] acknowledged some hebephilic and paedophilic attraction in females, in addition to disclosing having accessed child sex abuse material. Further to this, his thinking in relation to consent, sexual boundaries and the appropriateness of sexual contact with children is commensurate with the kind of distortions evident in untreated sexual offenders.

Taking into account the information available to me in this case, it is my opinion that [PN] has entrenched and deviant sexual interests in female children that he has maintained through abusive behaviour, inappropriate online communications, sexual fantasy and pornography use over at least 15 years. It is this that drove the sexual abuse of his niece, with [PN] grooming the child, sexualising their relationship, taking sexualised images of her, and forcing her to engage in sexual contact. He also communicated with others online about his deviant sexual interests.”

33. Dr Seidler concluded that the applicant presented with “notable risks pertaining to sexual abuse with few protective factors”. His attitudes were distorted and irresponsible and his capacity for empathy and remorse limited. He has little insight, being at the “pre-contemplation stage of change”. Dr Seidler observed,

“[PN] has entrenched and deviant sexual interests in female children that he has maintained through abusive behaviour, inappropriate on-line communications, sexual fantasy and pornography use over at least 15 years. It is this that drove the sexual abuse of his niece, with [PN] grooming the child, sexualising their relationship, taking sexualised images of her, and forcing her to engage in sexual contact.”

34. The applicant presented,

“[...] with notable risks pertaining to sexual abuse with few protective factors. Entrenched deviant interests are considered to be the primary risk in the case, associated with which [PN] presents with distorted attitudes, which supports his generally irresponsible and distorted account with respect to his offending behaviour.”

35. Dr Seidler thought the applicant’s “distorted and irresponsible position” limited his capacity for empathy and remorse. She was of the view that he had the potential to re-offend in both contact and non-contact ways, on-line and with children to whom he had access.

The Remarks on Sentence

36. Having noted the early pleas and the applicable 25% discount for the State offences, the sentencing judge concluded that the same discount should be applied to the Commonwealth offence to recognise the utilitarian value of the plea. His Honour was satisfied that it was appropriate to take into account on sentence those offences that were placed before the court with that intention.

37. His Honour set out the facts of the offences consistent with the agreed statement of them. Having noted that the maximum penalties and any applicable SNPP operated as important legislative guideposts, the sentencing judge turned to an assessment of the objective gravity of the crimes. His Honour observed,

“The circumstances of the offending described in the facts above show a callous and self-centred disregard for the child victim. The offender, aged 40 to 44 at the times of the offending, used and abused his niece for his own depraved sexual gratification. He did so after grooming her as I have described and then exploited her innocence and his access to her when living in her family home and after he moved out to satisfy himself.

The offending started by the grooming of the child when she was between 6 and 10 years old. She was only 6 when he texted her saying he wanted to have sex with her. Despite her rejecting the advances as best she could, he continued with that conduct including by sending her photos of his penis.

She was 8 to 10 years old when he used her to produce the child abuse material. She was 8 years old when he had multiple types of sexual intercourse with her. She was 8 and 9 when he sexually touched her.”

38. In an annexure to the published judgment the sentencing judge recorded his conclusions as to the gravity of each offence by reference to a position in a range. Those conclusions, about which no complaint is made, are not recorded here.

39. Referring to the decision of R v MJB [2014] NSWCCA 195 at [167] his Honour found that the applicant had breached a position of trust; he also noted that the offences had been committed in the victim’s home. These were matters of aggravation. The adverse effects of the abuse on AN were noted to be profound. The applicant’s criminal record was of significance only insofar as it signalled an escalation in his behaviour towards children.

40. The sentencing judge summarised the report of Dr Seidler, taking the applicant’s subjective circumstances from the information recorded by her. The only mitigating feature identified was the entry of pleas of guilty. His Honour was not able to find the applicant remorseful and concluded that his prospects of rehabilitation were poor. The need for both specific and general deterrence to feature in the sentence was noted.

41. The sentencing judge was mindful of the principle of totality, but also conscious of the need for the sentences imposed to properly reflect the gravity of the offending. Having referred to Hraichie v R [2022] NSWCCA 155, in particular [73] of that decision, his Honour observed that the offending was heinous and the number of counts large, necessarily requiring a “very lengthy” sentence to address the serious and separate conduct reflected by the charges. Nevertheless, a significant degree of concurrence was required, to give effect to the principle of totality.

42. His Honour concluded that there should be “a modest adjustment to the statutory ratio” of sentence to reflect the requirements of totality, in addition to the hardships the applicant had experienced in the period of the pandemic, and the fact that the applicant had no previous experience of a custodial environment.

The Application to this Court

Ground 1

43. The focus of ground 1 is on the indicative sentence announced with respect to count 12. Count 12 is an offence of sexual intercourse with a child under 10 years of age, contrary to s 66A of the Crimes Act; it reflects an act of digital-anal penetration, committed in the context of two other offences of digital-vaginal intercourse. Count 12, like count 13, was filmed by the applicant, in circumstances where neither the filming nor possession of the product of the filming was separately charged. The s 66A offence is one which carries life imprisonment and a SNPP of 15 years. The indicative term was one of 16 years 6 months imprisonment, with a NPP of 12 years and 4 months imprisonment. The applicant submits that this term, which reflects an undiscounted starting point greater than the SNPP, is “so severe as to indicate that the sentencing judge must have fallen into error in some way in determining [it]”.

44. The applicant acknowledges that an indicative sentence is not of itself amenable to appeal but argues that an error in determining the length of the indicated sentence may reveal error in the aggregate sentence, in that a “significant portion of the substructure upon which the aggregate sentence is based is faulty”. Relying upon AJ v R [2023] NSWCCA 158 at [37]-[38], the applicant contends that it is not necessary to determine whether there is error in the aggregate sentence imposed, as the manifestly excessive term indicated for count 12 had the capacity to infect the aggregate term such that the Court should proceed to resentence.

45. The Crown argues that, bearing in mind the maximum penalty and SNPP, the indicative term is within the range of sentences that could properly be determined for an offence of this nature, an offence that was found by the sentencing judge to fall within the “mid-range” of gravity for such crimes. Referring to R v Gavel [2014] NSWCCA 56 at [97], the Crown submits that the act reflected by count 12 fell to be assessed in the context of the whole, there being no “ranking” of the severity of the differing forms of sexual intercourse. In the circumstances of this matter, it is contended that it was open to the sentencing judge to regard count 12 as particularly serious and announce a higher indicative term for it than the other s 66A offences. Further, where the applicant’s subjective case was negligible, the Crown argues that the SNPP may have had greater significance: Ryan v R [2019] NSWCCA 200 at [66].

46. It is not strictly necessary to determine this ground, as the asserted error in the indicative sentence for count 12 forms part of the particulars of the complaint pleaded as ground 3. Insofar as consideration of the issue may be of some utility, in my conclusion a ground of appeal that raises a complaint of manifest excess with respect to an indicative term without a corresponding complaint as to the aggregate sentence can advance an appeal against sentence but little. That conclusion rests on the terms of ss 3 and 53A of the Crimes (Sentencing Procedure) Act and of s 6(3) of the Criminal Appeal Act.

47. Section 3 of the Crimes (Sentencing Procedure) Act defines a “sentence” that is imposed upon an offender as “the penalty imposed for an offence”. Section 53A of the Act provides for the imposition of an aggregate sentence where a court is sentencing an offender for more than one offence. In those circumstances the court may, pursuant to s 53A(1), impose an aggregate sentence “instead of imposing a separate sentence of imprisonment for each” individual offence. Section 53A(2)(b) requires the sentencing court to make a record of “the sentence that would have been imposed for each offence […] had separate sentences been imposed instead of an aggregate sentence”. The indicative sentence is not of itself the sentence of the court, as it is not “the penalty imposed for an offence”. It should not be expressed as a sentencing order: R v Clarke [2013] NSWCCA 260 at [50]-[52]; Cullen v R [2014] NSWCCA 162 at [25]-[40]; JM v R [2014] NSWCCA 297 at [39].

48. This Court is empowered to hear appeals against “a sentence” pursuant to the Criminal Appeal Act. The meaning of the word “sentence” in the context of appeal proceedings is much broader than the definition provided by the Crimes (Sentencing Procedure) Act. Despite the breadth of the definition given by s 2 of the Criminal Appeal Act however, it does not encompass an indicative sentence. Axiomatically, this Court has no jurisdiction to consider an appeal against an indicative sentence. That is not to say that error in the determination of an indicative sentence is irrelevant to an appeal against an aggregate term of imprisonment, since the former could have a material impact on the latter. That is what I understand Button J to have said in AJ v R, at [33]. The position with respect to indicative sentences is as stated by R A Hulme J in JM, at [40(11)]:

“The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55].”

49. On that basis, error in an indicative term does not, without more, give rise to the Court’s power to proceed to re-sentence. For that power to be enlivened, a further proposition, that the error in the determination of the indicative term led to error in the aggregate sentence that was imposed, must be established. Having so concluded, although I would grant leave to advance ground 1, it should be dismissed. The substance of it can be properly considered as a particular of ground 3.

50. Insofar as it is relevant to ground 3, although the indicative term for count 12 is high, in the overall context of this matter it is not, in my opinion, erroneously so.

51. The starting point in reaching that conclusion is the statutory guideposts, which have considerable importance in the sentencing exercise. Count 12 is an offence carrying a maximum penalty of life imprisonment upon conviction; the SNPP is 15 years. A maximum penalty of life imprisonment signals the gravity with which the parliament and the community regard offences such as this; a s 66A offence is, together with murder and some particularly grave drug offences, amongst the most serious crimes that can be committed. This is a feature that must be reflected in the sentence imposed. Another important feature in assessing the indicative term is the gravity of the particular offence. The sentencing judge assessed the conduct the subject of count 12 as falling in the “mid-range” of objective gravity. That does not, however, denote a fixed point in the precise middle of some notional range which must be concisely reflected by a particular sentence. The language of range is imprecise, as has been frequently noted by this Court: see Salama v R [2023] NSWCCA 141 at [47]-[49] for authorities on the point.

52. The assessment of the gravity of an offence as falling within the mid-range does not dictate the sentence to be imposed, by reference to any specified SNPP or any other feature. It is but one of the multiple factors, objective and subjective, to be considered when a sentence is determined.

53. Here, the act reflected by count 12 is one of digital penetration of AN’s anus. It occurred as one of three acts of intercourse that took place in a single episode, the episode itself having been the second incident of sexual abuse on that same day. The entirety of the conduct was filmed by the applicant, an additional uncharged degradation of AN. The two associated acts of intercourse reflected by counts 11 and 13 were acts of digital penetration of AN’s vagina. Count 12 was the only act of digital-anal penetration charged, for conduct on that day or at all. It is the only such act referred to in the statement of facts. The incident the subject of counts 11, 12 and 13 was the last charged occasion of sexual intercourse committed by the applicant against his niece. Soon after, his conduct was stopped by police intervention.

54. The conduct the subject of count 12 can be properly viewed as a perverted advance on the sexual abuse to which AN had become habituated over the period of the abuse; a final transgression that subjected AN to a new type of horror, a new type of demeaning and damaging act. Viewed as the aberrant culmination of a series of depraved and corrupt acts, it was open to the sentencing judge to regard the conduct reflected by count 12 as more serious than other charged counts contrary to s 66A of the Crimes Act, and fix a higher indicative term. There is no error in the term indicated by his Honour for count 12.

Ground 2

55. Ground 2 complains of error by an asserted failure to “carry through” an intention to alter the statutory ratio of sentence consequent upon a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. In his remarks the sentencing judge stated that he proposed to make a “modest adjustment to the statutory ratio” to reflect “hardship due to the COVID-19 pandemic where the offender was locked in his cell for 100 days in 2021-2022, the fact this is the offender’s first time in custody and having regard to the principles of totality”. By calculating the ratio of sentence for the indicative terms, the applicant argues that it can be inferred that the sentencing judge overlooked his own conclusion as to special circumstances. He points to the ratio of the indicative sentences for counts 4, 7, 8, 11, and 13 (74%); counts 5, 6, and 10 (75%); and count 12 (74.7%) as establishing that proposition. Referring again to AJ v R, the applicant submits that “a significant portion of the substructure upon which the aggregate sentence is based is faulty”, calling the aggregate sentence into question, and requiring this Court to proceed to re-sentence.

56. That argument must be rejected. Although the variation to the ratio of the indicative terms for counts 4, 7, 8, 11, 13, and 12 was very modest indeed, and no variation at all was allowed in the ratio of the indicative sentences for counts 5, 6, and 10, that fact would only signal appealable error if the diminution in the ratio of the aggregate NPP to the aggregate sentence was similarly minimal. If that were the case, it might be possible to infer that a failure to vary the ratio of sentence for the indicative terms led to error by allowing an inadequate degree of variation to the aggregate sentence. That, however, is not the case.

57. His Honour’s intention was to allow some modest adjustment to the ratio of sentence. Whilst the word “modest” is not amenable to mathematical definition, it can only mean some relatively minor adjustment to the ratio of the sentence that was imposed. The sentence imposed for the State offending was one of 37 years imprisonment with a NPP of 25 years. The ratio of the NPP to the total term is 67.5%, a reduction of 7.5% on the usual ratio of sentence, slightly more generous than merely modest.

55. Although Commonwealth sentences do not attract an ordinary ratio of non-parole period to overall term, and the sentence imposed for the Commonwealth offending is not amenable to considerations of ratio, if one has regard to the overall term of imprisonment by reference to the combined effect of the Commonwealth and State offences, the ratio is very similar. Adding the Commonwealth and State sentences together, the total term was one of 38 years imprisonment with a NPP of 26 years. The overall NPP of the overall term represents a ratio of sentence of 68.4%, an adjustment on the usual State ratio of 75% that can be regarded as modest or a little more than modest.

56. Thus, in neither the sentence imposed for the State offending, nor with respect to the total time to be served, was there any failure to give proper effect to the stated intention of allowing some modest adjustment in the ratio of sentence.

57. The indicative sentences announced are not sentences or orders of the court and error in these terms or their ratio, standing alone, is not amenable to appeal. Such announced terms do no more than record the sentences that would have been imposed had an aggregate sentence not been utilised. Had the sentencing court proceeded by the imposition of individual sentences, it would have been necessary to give careful attention to the commencement date of each sentence, in all likelihood staggering each to allow for a proper degree of concurrence and accumulation, and an overall term that appropriately reflected the totality of the criminality. If that course had been adopted, no doubt the sentencing judge would have carefully considered both the ratio of sentence of individual terms and the overall outcome in terms of ratio of sentence. That approach was not necessary because an aggregate term was imposed. Avoiding the necessity of undertaking the complex and difficult task of fixing individual terms for multiple individual offences, and still achieving an appropriate overall outcome, is the principal reason for the introduction of aggregate sentences. It would be unfortunate if that positive and welcome development in sentencing jurisprudence was undermined by an appellate court treating indicative sentences as orders against which an appeal could be brought.

58. Where there is no error in the sentence imposed, here an aggregate term, there can be no successful appeal. I would grant leave to argue ground 2, but it should be dismissed.

Ground 3

62. Ground 3 asserts that the aggregate sentence imposed for the State offences was manifestly excessive. To succeed on a ground of this nature the applicant must demonstrate that the aggregate sentence imposed upon him was unreasonable or plainly unjust. The applicable principles in assessing that claim may be found in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; and Obeid v R (2017)96 NSWLR 155; [2017] NSWCCA 221 at [443].

63. The applicant concedes that there is no patent error in the sentencing judge’s reasons but submits that it may be inferred that there was error in the level of accumulation of penalty, which was:

“… unreasonably high, particularly bearing in mind that all the offences were committed in respect of the same victim and were all the consequence of the applicant’s sexual deviancy, in circumstances where he is yet to receive any sexual offence specific treatment...”

64. Having earlier concluded that the indicative term announced with respect to count 12 was not manifestly excessive, it is useful to address these contentions concerning totality first, before returning to the overarching question of manifest excess.

65. One of the best statements of the operation of the principle of totality is found in R v Cahyadi (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]:

"… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

66. The applicant was sentenced for 14 State offences that related directly to AN, and another Commonwealth offence which related to her at least tangentially, in that images of her made up most of the child abuse material the applicant accessed. The degree to which the indicative penalty for one child sexual assault offence could comprehend the criminality of any other offence was a matter for the sentencing judge to assess. Whilst the fact that all offences were committed against the same child allowed for a greater degree of notional concurrency of sentence between the penalties indicated for individual counts than would have been the case if completely different children were involved, that does not dictate that the level of concurrency must be high. Such a proposition, inherent in the applicant’s submission on this point, cannot be accepted. It seems to be premised on an assumption that, once a child has been sexually abused by an offender, additional crimes by the same offender constitute only limited additional criminality, allowing a significant degree of concurrency of sentence.

67. To view the repeated abuse of a child in that way is to diminish the extreme gravity of repetitive child sexual assault offences, and the great and compounding harm done. There is no reason to regard the additional harm occasioned to a child victim by repeated assaults as minor. As the sentencing judge observed, the 14 State offences of which the applicant was convicted, together with the offences listed on the two Form 1 documents, constituted serious and separate criminal conduct. Serious and separate criminal conduct cannot ordinarily be adequately comprehended by the imposition of largely concurrent sentences. Such an approach would fail to reflect the terrible damage done by each separate assault. It would also have the utterly unacceptable practical outcome of appearing to reward those who commit multiple offences. As this Court stated in R v Wheeler [2000] NSWCCA 34 at [37]:

“It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences […] must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour."

68. The applicant’s serious repeat offending did not of itself call for any real degree of concurrence of sentence; it was only the principle of totality which required some level of notional concurrence between the indicative sentences to ensure that the aggregate sentence imposed upon the applicant bore an appropriate relativity to the totality of the criminality of the crimes he committed. The criminality of his many crimes was very high; necessarily, so too was the sentence imposed.

69. Neither can the applicant’s status as an untreated child sex offender be regarded as a feature that should have mitigated sentence by allowing for greater notional concurrency of sentence. Having been convicted in 2009 of a child abuse offence, the applicant could not have been unaware of the repugnance with which the community and the criminal law viewed his perverted sexual interest in children, and thus of the importance of addressing his behaviour. Despite that, the applicant failed to take any steps between 2009 and his arrest for the current offences to seek treatment for or control of his abhorrent behaviour. The responsibility for so doing, and the consequences of that failure, rested entirely with him. It did not call for greater notional concurrency of sentence, or any amelioration of the aggregate term.

70. The applicant pointed to a number of “comparable cases” to make good his contention that the aggregate sentence imposed on him is unjust; he referred to R v BH [2023] NSWCCA 278; Clarke v R [2023] NSWCCA 170; Grange v R [2023] NSWCCA 6; PC v R [2022] NSWCCA 107; and R v JJ [2009] NSWCCA 148. The difficulty with consideration of other decisions in a case where an aggregate sentence has been imposed is that the aggregate sentence comprehends a range of offences not likely to be found in any other case. That is so in this instance – none of the cases cited are on all fours with that of the applicant. R v BH is perhaps the closest case to the present, but one instance where a lesser penalty was imposed for similar offending does not make for a range or establish that the sentence imposed upon the applicant falls outside the acceptable sentencing range.

71. Relying on Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153, at [36]-[38] and [328], the applicant argues that the multiple purposes of sentencing could be met by the most severe indicative sentence, but that diminishes two important principles. The first is that a sentence should not be less than the objective gravity of the offences requires: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]. The second is recognition of the need to maintain public confidence in the administration of the criminal justice system: R v M.A.K., R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [18]; R v Van Ryn [2016] NSWCCA 1 at [229]; Maxwell v R [2020] NSWCCA 94 at [116]. An approach that penalised an offender by reference only to the most serious of multiple crimes would signally fail to reflect either of those requirements.

72. The sentence imposed upon the applicant had to comprehend 11 State offences that carried a maximum penalty of life imprisonment and three other crimes that carried maximum penalties of between 12 and 16 years imprisonment, taking into account the 13 further child sexual assault offences that were placed on Form 1 documents. It had to recognise that the course of serious and repetitive offending reflected by the charges was committed against a child aged between six and nine years at the relevant times, and one with respect to whom the applicant stood in a position of some responsibility and trust, as her uncle. The sentence had to reflect the fact that AN was sexually abused in her own home, a place where she should have been safe from harm; and that very great harm was done to her, with adverse consequences for her future. As to the latter, see R v CMB [2014] NSWCCA 5 at [92]; SW v R [2013] NSWCCA 255 at [52]. It also had to denounce crimes that the community regards as extremely grave and utterly loathsome; and punish the applicant for what he had done. The sentence had to deter the applicant from the future commission of such crimes, and also others who might share his perverted sexual tastes.

73. It had to do so in a context where the applicant’s subjective case was negligible. The only evidence he could rely upon was a psychological report that could not be regarded as favourable – quite to the contrary. Dr Seidler concluded that the applicant had no real insight into his offending, offending for which he blamed AN, and which he denied and minimised, despite his pleas, pleas that were inevitable, given the digital recordings made by the applicant of his crimes. The sentencing judge found that the applicant had no remorse and no positive prospects of rehabilitation. There was nothing to be said that gave much hope for a law-abiding future for the applicant.

74. The aggregate sentence is a stern one; it might even be characterised as severe. Some offending, however, calls for severe punishment. In all the circumstances of this matter, I am unable to conclude that the aggregate sentence is unjust or unfair, and I would dismiss the appeal.

Proposed Orders

75. For those reasons I propose that leave to appeal is granted, and the appeal is dismissed.

76. CHEN J: I agree with Wilson J.

77. HUGGETT J: I agree with the reasons of Wilson J and the orders her Honour proposes.

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Endnote

Decision last updated: 05 June 2024