R v AB

[2022] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v AB [2022] NSWCCA 3

Hearing dates:

27 August 2021

Date of orders:

1 February 2022

Decision date:

01 February 2022

Before:

Meagher JA; Wright J; Fagan J

Decision:

Appeal dismissed.

Catchwords:

CRIMINAL LAW – Crown appeal against sentence – manifest inadequacy – where respondent pleaded guilty to sexual offences against 14 year old boy – where respondent a victim of childhood sexual abuse – where unchallenged medical evidence indicated causal link between childhood abuse and offending – where respondent sentenced without proceeding to conviction – whether unreasonable or plainly unjust for sentencing judge not to have recorded convictions – whether sentence unreasonable for not reflecting objective seriousness of offending and need for general deterrence, denunciation and recognition of harm to victim

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Crimes Act 1900 (NSW), ss 61O(2A), 66C(3), 91G(2)(a), 578A(2)

Criminal Appeal Act 1912 (NSW), s 5D

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26

EG v R [2015] NSWCCA 21

Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31

Hoffenberg v District Court of New South Wales [2010] NSWCA 142

House v The King (1936) 55 CLR 499; [1936] HCA 40

R v Ingrassia (1997) 41 NSWLR 447

R v Le [2019] NSWSC 633

R v Mauger [2012] NSWCCA 51

R v McInerney (1986) 42 SASR 111; (1986) 28 A Crim R 318

R v ZB [2021] QCA 9; (2021) 287 A Crim R 519

Re Attorney General’s Application under Section 37 (No. 3 of 2002) (NSW) (2004) 61 NSWLR 305; [2004] NSWCCA 303

Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Regina (Appellant)
AB (Respondent)

Representation:

Counsel:
C Young (Appellant)
A Francis (Respondent)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
McWilliams Lawyers (Respondent)

File Number(s):

2019/216935

Publication restriction:

Pseudonyms used for the respondent (“AB”) and complainant (“AS”).

Pursuant to Crimes Act 1900 (NSW), s 578A(2) and Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1), publication of any matter which identifies or is likely to identify the complainant AS in connection with this proceeding, or the respondent AB in connection with earlier proceedings for offences committed by members of his family in respect of which AB was a complainant and/or witness, is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 February 2021

Before:

Wass SC DCJ

File Number(s):

2019/216935

Judgment

1. THE COURT: This is a Crown appeal pursuant to Criminal Appeal Act 1912 (NSW), s 5D against the sentence imposed on the respondent (“AB”) by her Honour Judge Wass SC (the sentencing judge) in the District Court on 15 February 2021.

2. The single ground of appeal is that the sentence was manifestly inadequate, and accordingly “unreasonable or plainly unjust” such that this Court “may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance” (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40).

3. In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58], Gaudron, Gummow and Hayne JJ said of sentencing appeals on the ground of “manifest excess or manifest inadequacy”:

… [A]ppellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.

4. The task of sentencing requires that the sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender is to be sentenced and the personal history and circumstances of the offender (Wong at [72]). In Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31, the Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) emphasised at [27]:

… the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.

The offences

5. The respondent pleaded guilty to an indictment containing nine offences. A further three offences were taken into account by way of Form 1s. The nine offences involved the performance and photographic recording of sexual acts on two occasions (29 June 2018 and 29 July 2018) with a 14 year old boy, who the respondent (then aged 25) had met online, as well as contemporaneous and subsequent exchanges of photos and videos containing sexually explicit images of the boy. The respondent and complainant had met after connecting using the internet application “Grindr”.

6. Five counts (counts 1, 2, 4, 6 and 8) were for the offence of sexual intercourse with a person of or above the age of 14 years and under the age of 16 years, contrary to Crimes Act 1900 (NSW), s 66C(3). Three counts (counts 3, 7, 9) were for the offence of using a child of or above the age of 14 years for the production of child abuse material, contrary to Crimes Act, s 91G(2)(a). The remaining count (count 5) was for the offence of committing an act of indecency with a child under the age of 16 years knowing the act of indecency was being filmed for the purpose of the production of child abuse material, contrary to Crimes Act, s 61O(2A) (since repealed). Of the three Form 1 offences, two were offences of sexual intercourse with the complainant and one for possessing child abuse material (being that related to count 9).

The sentence

7. At the time he was sentenced, the respondent had spent eight and a half months in custody prior to being released on bail on 28 March 2020. The sentencing judge dealt with the nine offences and matters to be taken into account under Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), s 10(1)(b), in each case without proceeding to a conviction and making an order discharging the respondent under a 2 year conditional release order.

8. Section 10(1)(b) relevantly provides:

10   Dismissal of charges and conditional discharge of offender

(1)  Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—

(a) an order directing that the relevant charge be dismissed,

(b)  an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

The issue in the appeal

9. The issue raised by the Crown’s appeal is a narrow one which turns on the particular circumstances of the respondent’s offending and his personal history and circumstances or subjective case. The sentencing judge introduced her analysis of that case (ROS[38]) as follows:

[The respondent’s] life story, and particularly his account of sadistic violent and psychological abuse, the severe cruelty and neglect, and his early sexualisation at the hands of those who were tasked to caring for him is one of, if not the most, compelling that I have experienced.

10. In its written submissions to this Court, the Crown accepts that the respondent had a powerful subjective case, and did not resile from the concession made in the sentencing hearing that “alternatives to a further sentence of full-time imprisonment were available to the sentencing judge”.

11. The Crown’s position in the appeal is that, given the objective seriousness of AB’s offending and the need for a sentence that reflected the principles of general deterrence, denunciation and recognition of harm to the victim, “sentencing the respondent without recording a conviction was unreasonable”.

12. As the ground of appeal implicitly accepts, the Crown does not contend that the sentencing judge acted upon any wrong principle, took into account extraneous or irrelevant matters, failed to have regard to factors that were to be considered, or mistook the facts in any respect which is apparent from the sentencing judge’s remarks.

Continued use of pseudonyms

13. As the remarks on sentence contain details of the respondent’s history as a victim of child sexual abuse and of his sexual offences against the complainant when a child, the sentencing judge used pseudonyms to refer to each of them. For the same reasons, we propose to adopt those pseudonyms in these reasons. They are “AB” for the respondent and “AS” for the complainant.

14. There are statutory provisions which prohibit the publication of any matter which identifies or is likely to identify (1) the complainant in connection with this proceeding; and (2) the respondent in connection with earlier proceedings for offences committed by his family members, in respect which he was a complainant and/or witness: see Crimes Act 1900 (NSW), s 578A(2); and Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a). The former prohibition is engaged because each of AS and AB was the “complainant” in proceedings for a “prescribed sexual offence” as defined in the Criminal Procedure Act 1986 (NSW). The latter prohibition is engaged because each of AS and AB was a child when the relevant offences to which those respective proceedings relate were committed.

The offending

15. There is no challenge to the sentencing judge’s findings as to the background to and circumstances of the offending. The following brief summary is taken from her Honour’s remarks on sentence (R v AB, District Court (NSW), Wass SC DCJ, 15 February 2021, unrep).

16. The complainant’s Grindr account used a fictitious email account and suggested that he was over 18, though he was only aged 14. The offending occurred between late June 2018 and 6 September 2018. During that period the respondent and complainant exchanged 12,379 SMS messages.

17. The respondent and complainant met on two occasions. On each, they engaged in numerous sexual acts which involved unprotected penile/anal sex and the respondent penetrating the complainant with a dildo or vibrator. By the time of the first, the respondent believed the complainant to be 15 years old and was aware that he (the respondent) was acting illegally, notwithstanding that the complainant was an apparently experienced and willing participant in their sexual activity.

18. The first encounter making up counts 1 to 5 and one of the Form 1 matters occurred in the early evening of 29 June 2018 at the respondent’s home. Those counts are described more graphically at ROS[18] and in the statement of agreed facts attached to those remarks. On 29 July 2018, on the occasion of their second encounter, the complainant again went to the respondent’s house, where they engaged in “numerous sexual acts”. That encounter made up counts 6 to 8 and one of the Form 1 matters, and again is described more graphically at ROS[20]-[21] and in the statement of agreed facts.

19. The sentencing judge treated each of these occasions as a single sexual experience. Each of the charged offences and the three further offences to be taken into account carried a maximum penalty of 10 years imprisonment. The sentencing judge noted that this was a “clear guidepost to the seriousness of the offending” (ROS[120]). The sentencing judge regarded the offending with respect to each offence to be “slightly below the mid-range for offences of this kind”, also noting that there was “little to differentiate them from each other in terms of the level of seriousness” (ROS[15]).

20. The extraordinary number of messages exchanged in the period June to September 2018 included photographs of the complainant naked in suggestive and sexual poses, and performing sexual acts including particular acts which the respondent had requested him to perform and photograph. Those messages, and specifically the child abuse material, are the subject of count 9. That material is described in more detail at ROS[23]-[26] and in the statement of agreed facts.

21. At the time he was arrested on 12 July 2019, the police seized the respondent’s mobile phone and located the video which was the subject of count 9 and the Form 1 offence of possessing child abuse material.

Respondent’s personal history and circumstances

22. Before his arrest, the respondent had no criminal record and no entries in his custodial history of any custodial infringements.

23. His evidence on sentence included a written statement that he had prepared and confirmed on oath, which “provided an outline of the events of his life” and in particular the extensive childhood sexual abuse suffered by him from when he was aged 5, at the hands of his mother and numerous others.

24. The sentencing judge annexed that confidential statement to her remarks on sentence, and recorded a summary of the relevant events at ROS[47]-[73], including:

47. His parents divorced when he was five. A few months later his mother’s new boyfriend moved into the family home. The offending against him commenced shortly thereafter. His mother’s then boyfriend forcibly and brutally bound him, terrified him, humiliated him and sexually assaulted him.

48. From that time on he was detained by his mother against his will in squalid conditions for a period of many years, so that she could profit by selling him to men for sexual services on multiple occasions during any one day, with up to about ten or more stranger men, but also at the hands of his mother’s boyfriend.

49. He was kept in the most inhumane circumstances. He was bound, harshly sexually assaulted, forced to perform degrading acts, tortured, scarred and denied the most basic of life’s necessities such as adequate food and water. He was left in his own blood and faeces. This continued daily for months. His mother is appropriately, in my view, serving a very long term of imprisonment for her offending against him.

…

53. During a time when the offender was only six or seven his mother’s new boyfriend also sold him for sexual services. That man was also cruel and disgraceful in his conduct toward the offender.

…

25. That confidential statement was accompanied by a short document outlining his experience as a victim of childhood sexual abuse:

Mother

Sentenced on 28/29^th Nov 2019 to 18 yrs with npp 12 yrs 9 mths

-   [The respondent’s] mother locked [the respondent] in a bedroom (not allowed to leave even for bathroom) for sale to customers for sexual purposes from age 5.5 to 9.

-   [The respondent] was handcuffed to the bed and sold to between 1-10 people per day.

-   Abuse included anal penetration, perform sexual acts on men.

-   Some of the men carved initials into [the respondent’s] back.

-   Fed once a day 2 weet-bix and water.

-   Did not have access to shower or bath except as part of abuse.

Uncle (mother’s brother-in-law)

Sentenced on August 2018 to 26 years npp 16 years

-   When [the respondent’s] mother was absent, [the respondent] was taken to [his uncle’s] house, locked in a room with 2 cousins aged approximately 6 and 14.

-   All three children were raped once or twice per day.

-   The 14 year old also raped [the respondent] but was not convicted.

Mother’s Boyfriend

-   Lived with [the respondent’s] Mother for 3 years.

-   Participated with [the respondent’s mother] in selling [the respondent] to customers.

-   Performed violent acts on [the respondent] including breaking his jaw on two occasions because [the respondent] cried. [The respondent] age 6 or 7.

-   Forced [the respondent] to perform sexual acts on sister… [the respondent] age 6 or 7 when sister aged 9 or 10.

-   Mother and [mother’s boyfriend] treated [the respondent’s sister] like a love child.

-   [The respondent’s sister] does not communicate with [the respondent].

-   At age between 7 and 7.5, [the respondent] grabbed [his mother’s boyfriend’s] necklace, broke it and tried to put the pieces in his mouth. [His mother’s boyfriend] “punished” [the respondent] by taking him to a shed in the Blue Mountains, chained him by his ankles, left him no food and abandoned him.

-   [The respondent] was found and rescued by a jogger after 13 days. [The respondent] survived by eating dog biscuits he found in his shed as well as water from a drum.

-   The Police returned [the respondent] to his mother’s home.

-   The Officers were subsequently removed from their positions as a result of police investigation into their conduct.

-   [His mother’s boyfriend] committed suicide when he was charged for these offences.

Mother’s first boyfriend

-   Lived with mother for 6 mths.

-   Due to stand trial [shortly after time of sentencing of AB].

-   Previous trial aborted due to Co-vid.

CESSATION OF SEXUAL ABUSE

-   [The respondent’s] mother entered into a new relationship when [the respondent] was 9 and the abuse stopped. However at his age 15 she sold [the respondent] to a woman who was an ice dealer. [The respondent] was there for 1 month when the woman was charged with attempted murder of a man she shot in the back. [The respondent] was removed and lived in refuges and on the streets until “rescued” by [a] now member of parliament … who arranged for him to get a scholarship to [a high school].

SIGNIFICANT ISSUES

-   [The respondent’s mother] was part of the stolen generation and is half Aboriginal.

-   Mother pleaded guilty and was sentenced at Parramatta District Court.

-   [The respondent] gave evidence at [his uncle’s] trial in 2018.

-   [The respondent] found the cross-examination humiliating and very distressing eg. in cross-examination when [the respondent] gave evidence that his uncle forced him to have sex with him in the shower when he was aged 6.5-8 he was asked “were you that dirty of a child that you needed assistance in bathing”.

As a result of this experience [the respondent] started abusing MDMA and cocaine between May and September 2018 (and at the time of the current offences).

[The respondent] has not used any drugs since 4^th September 2018.

He has been attending NA meetings weekly from this time.

[The respondent] is the principal witness in the [trial of his mother’s first boyfriend].

…

26. The sentencing judge found (ROS[39]) that:

39. … the early violence and sexualisation of the offender at the hands of others has been instrumental in the way he has emotionally developed, and in turn engaged sexually with others during his life, including [the complainant]. Although it is very difficult to untangle his attitudes in that respect, given all that he has been through, I have no doubt that it has impacted on his gross lack of judgment in this case, and indeed the psychologist and psychiatrist are at one on that issue and are not challenged.

27. Her Honour found that the time of the offending was one of “extreme stress in [the respondent’s] life”. In May 2018, he was required to give evidence in the trial of his mother’s brother-in-law regarding the offending against him. The sentencing judge found that his experience in that trial as a witness subjected to “humiliating and distressing” cross-examination had “an indirect causal link on his offending” (ROS[80], [81]).

28. Addressing specifically the period between May and September 2018, the sentencing judge found:

82. It is also relevant that in that year his mother was indicted in respect of her offending against him. He sought to numb himself, and so in response to that experience [the respondent] started abusing MDMA and cocaine, something he had not done before. Such was his overuse of cocaine that it caused frequent serious nosebleeds.

83. Usually someone with low self-esteem, he dramatically became more self-confident and self-important, such that it was noted by others including his employer. [His] employer noted, correctly in my view, that this change in overall demeanour was a result of stress from participating in the court proceedings. He had an excessively high sex drive at that time. He was exhibiting other excessive behaviours such as compulsive shopping. It was in that context that he offended.

84. Other than his occasional use of cannabis in the past, it is to his great credit that he had not resorted to self-medication of that kind prior to that time. He does regularly drink alcohol and is trying to address that through NA. Indeed he has no other criminal record of any kind. He has not used illegal drugs since September 2018 and regularly attends NA.

29. At ROS[97], her Honour recorded that the medical evidence made clear that “[the respondent’s] abhorrent behaviour has been moulded by his extreme childhood experience”. That conclusion was supported by the evidence of Dr Christopher Lennings, a clinical psychologist, in his report of 26 September 2020, and the evidence of Dr Sathish Dayalan, a consultant forensic psychiatrist, in his report of 9 December 2020. None of that evidence was challenged.

30. Dr Lennings’ evidence was that at the time of the offending, the respondent was in a “hypomanic state” as a result of the stress suffered from his participating in the trial of his mother’s brother-in-law in May 2018. This state was found to have resulted in a significantly increased sex drive, impaired his ability to think clearly, and contributed to reckless behaviour, including abusing cocaine and MDMA.

31. Dr Dayalan’s opinion included that around the time of the offending (pp. 10-11):

… [The respondent] had endured the stressful experience of a court trial where presumably his past traumatic and degrading experiences were discussed in the court room and the authenticity of his version of such experiences was questioned during cross-examination. He had resorted to using illicit drugs to cope with the intense distress of this experience. The stress associated with the court trial and use of illicit drugs probably triggered a hypomanic episode at the time of the offences.

Hypomanic episodes are often associated with reckless attitude[s] that result in behaviour such as excessive spending, promiscuous behaviour, substance use and offending behaviour. The increase in self-confidence and impaired judgement associated with manic/hypomanic episodes contribute to such behaviour. In the case of [the respondent], the recklessness and heightened sex drive associated with his hypomanic state and impaired cognition due to use of substances and his psychiatric conditions probably contributed to his offending behaviour.

Prospects of rehabilitation

32. Looking forward, the sentencing judge made the following findings concerning the respondent’s prospects of rehabilitation:

71. The offender has been diagnosed over time as suffering from depression, anxiety, PTSD, obsessive compulsive disorder, borderline personality disorder and bi-polar disorder. He has an eating disorder. He has daily flashbacks and memory triggers. I have read at length, carefully and in detail, the psychological reports that have been tendered, and have taken them into account. I see no need to repeat them in detail.

72. He is currently appropriately medicated and under the care of professionals who he sees weekly, particularly in relation to his depression and suicidal tendencies. He is intermittently suicidal. He has suffered twenty hospital admissions as a result. He has twice been admitted into intensive care units after serious attempts at suicide. In 2011 he not only overdosed on drugs and alcohol but threw himself into the sea. In 2015 he sliced his leg to the bone.

33. Nevertheless having undertaken his Higher School Certificate in 2010 and obtained a 96 ATAR, the respondent went on to complete two science degrees specialising in forensics and criminology, and at the time of sentencing was in the middle of completing a degree in law and Aboriginal studies. Her Honour continued:

78. Prior to being derailed by these offences and his resulting incarceration (for a period of eight months and seventeen days before he was granted bail), he had a strong work ethic. He was employed in hospitality and retail, and more recently at the Coroner’s Court as a criminal analyst.

79. The offender is otherwise a remarkable young man. His medical professionals and those who know him well, who I note are here to support him, describe him in absolutely positive terms. They are terms that he deserves.

Was the sentence manifestly inadequate?

The exercise of the discretion under Sentencing Procedure Act, s 10(1)(b)

34. Sentencing Procedure Act, ss 10(2) and 10(3) are relevant in relation to the exercise of the discretionary power conferred by s 10(1)(b). They provide:

10   Dismissal of charges and conditional discharge of offender

…

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied—

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to discharge the person under a conditional release order.

…

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

…

35. In Hoffenberg v District Court of New South Wales [2010] NSWCA 142, Basten JA made the following observations of the “deliberative” process called for by the application of s 10 (at [8], [10]):

8 … Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order “may be made” if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court “is to have regard to”. While the logic of the new structure is apparent, its effect is obscured.

…

10 Further, to say that a court "is to have regard to" certain factors (see sub-s (3)), suggests that these are mandatory considerations. However, they are really conclusions reached by the court in the course of its considerations. As is clear from s 4 of the South Australian Act, a critical question for the court may be whether the nature of the offence can properly be described as "trivial" and whether the circumstances in which it was committed were in fact "extenuating circumstances". Properly understood, the court is not to "have regard to" those factors, but to determine whether those factors exist. Finally, it seems that these are not in truth mandatory considerations, because par (d) includes "any other matter that the court thinks proper to consider". It is not meaningful to make that a mandatory consideration. Again the purpose is to ensure the court considers the full range of factors it considers relevant.

36. In this appeal, the Crown does not contend that the sentencing judge failed to give consideration to any of the factors specified in s 10(3)(a)-(c), or that her Honour failed to have regard to any specific matter that ought properly have been the subject of consideration.

The Crown’s position

37. Ultimately, the question for this Court is whether in all the circumstances, and notwithstanding the width of the sentencing discretion, there must have been some misapplication of principle in her Honour’s conclusion that it was not necessary to proceed to conviction in respect of each of the offences to which the respondent pleaded guilty.

38. There are two particular matters which the Crown submits, considered separately or taken together, “required” the recording of a conviction, such that in the absence of her Honour’s having done so, there must have been a failure properly to exercise her discretion. The first of those matters is the objective seriousness of the respondent’s offending, and the second in relation to the task of sentencing for that offending, the need for “general deterrence, denunciation and recognition of harm to the victim”.

The recording of a conviction

39. The recording of a conviction is a “formal and solemn act marking the court’s, and society’s disapproval of a defendant’s wrongdoing” (R v McInerney (1986) 42 SASR 111 at 124; (1986) 28 A Crim R 318 at 329 (Cox J)).

40. In Cobiac v Liddy (1969) 119 CLR 257 at 269; [1969] HCA 26, Windeyer J, forming part of a majority which affirmed the exercise of a magistrate’s statutory discretion not to proceed to conviction in respect of drink driving offences, observed:

The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.

41. With reference to these observations, in R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ (with whom McInerney and Ireland JJ agreed) said in relation to the predecessor to Sentencing Procedure Act, s 10:

The essence of s 556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps “without proceeding to conviction”. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, “a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”.

42. As Sofronoff P of the Queensland Court of Appeal stated in R v ZB [2021] QCA 9 at [6]; (2021) 287 A Crim R 519, referring to the Queensland statutory equivalent to Sentencing Procedure Act, s 10(3):

While the most immediate result of recording an offender’s conviction is to make the fact of conviction known to those who have a legitimate interest in knowing about it, that cannot be the only purpose of recording a conviction. Section 12(2)(a) of the Penalties and Sentences Act makes the “nature of the offence” a factor to which a sentencing judge must have regard. In so doing, the legislature has reflected the notion that in some cases the offence is so grave that it is right that the offender’s crime be noted officially as part of the community’s denunciation of the commission of the offence. Such a denunciation is a balancing reaction to the effect of the offence as an insult to the common good. It acts as a vindication of the community’s trust in order according to law. For this reason, there are cases in which it would be unconscionable for a court to allow an offender to affect that he or she has not been convicted when the truth of the matter is that the offender has, as a matter of fact, been found guilty by a court of a very serious crime.

Disposition of the appeal

43. Her Honour had regard to what this Court held with respect to the application of s 10 in Re Attorney General’s Application under Section 37 (No. 3 of 2002) (NSW) (2004) 61 NSWLR 305; [2004] NSWCCA 303 at [132]:

But where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration.

44. That passage from the judgment of Howie J (with whom Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreed) is extracted in R v Mauger [2012] NSWCCA 51 at [20], and in turn was referred to by the sentencing judge at ROS[129]. The Crown relies on the correctness of the sentencing judge’s conclusion that, assessed objectively, the relevant offending was “slightly below the mid-range”, with little to differentiate one offence from the others (ROS[15]).

45. In assessing whether the “penalty imposed” would reflect the objective seriousness of the offence if no conviction was registered, the sentencing judge “took into account” that the respondent had served more than eight months in custody. Her Honour also found that period of imprisonment was “at times cruel and unusual” and “often extremely confronting” for reason that it harked back to the periods of incarceration the respondent had endured as a child; and because one of the offenders against him and in relation to whom he was to give evidence was housed in the same part of the prison (ROS[91]-[92]).

46. In relation to further punishment by imprisonment, the Crown does not challenge the sentencing judge’s findings as to there being “little need for further punishment” of the respondent (ROS[116]) where, having offended in “extenuating circumstances” (ROS[115]), he had served his time in custody in the circumstances described above. Nor does it suggest that the objective seriousness of his offending required that he be subjected to any further period of imprisonment. Nevertheless, the Crown contends that the objective seriousness of the offending necessarily required that convictions also be recorded.

47. As to considerations of general deterrence, denunciation and protection of the community, the sentencing judge considered that the uniqueness of the respondent’s case “make[s] it one for which general deterrence is not a particularly important matter” (ROS[100]) and “renders it almost ineffective as a tool for general deterrence” (ROS[124]).

48. Whilst the Crown accepts that there may have been a “reduced need for general deterrence given the respondent’s subjective case”, it points to the sentencing judge’s observation at ROS[100] that “even those who have suffered in their life need to understand if they too offend meaningful penalties will be imposed by the Courts”. In those circumstances it contends that the overall penalty imposed – which did not include the recording of convictions – did not take account of a need (though reduced) for general deterrence and denunciation, particularly in a case involving child sexual abuse.

49. In support of that proposition, the Crown relies on the observation of Hoeben CJ at CL in EG v R [2015] NSWCCA 21 at [42] as to the heightened need for general deterrence, denunciation and protection of the community in such cases. However, that observation does not purport to state a rule of general application to all such cases. It must necessarily be qualified by reference to the particular circumstances of each case, as Hoeben CJ at CL’s immediately following observation recognised:

In this case, the applicant’s mental condition and his inability to explain or understand his actions (which her Honour accepted) meant that general deterrence had little part to play in his punishment. Similarly, the one-off nature of the offending and the very high unlikelihood of him re-offending meant that specific deterrence and protection of the community were not significant issues.

50. For similar reasons, it was open to the sentencing judge to conclude, as her Honour did, that general deterrence and denunciation had little part to play in the respondent’s punishment (ROS[124]):

To say that this case is unique and in a [class] by itself renders it almost ineffective as a tool for general deterrence. Given the circumstances, there is also no need … for further punishment that a conviction will bring, particularly given the eight months in custody in the circumstances I have described, the extra-curial punishment involved in him losing his employment, and his housing, and at least risking his employment prospects in the legal profession.

51. There remains the Crown’s submission that the recognition of harm to the victim, taken with the matters dealt with above, required that convictions be recorded. At the same time, it is not suggested that the sentencing judge did not take the recognition of harm to the victim into account when determining a sentence.

52. Nor could it be, in view of her Honour’s remarks at ROS[107]:

However it must not be forgotten that [the complainant] is the victim in this case and it is well-known that even young people who think they are making their own informed choices about sexual activity go on later in life to struggle with those decisions, to see them in a different light, and to suffer. It is for that reason the law is there to protect them. Consideration needs to be given to the assumed harm that this offending has caused to [the complainant], even without clear evidence of harm done, and the sentence needs to acknowledge the harm done.

53. In weighing that consideration, the sentencing judge determined that the “non-recording of a conviction… far outweighs a requirement of punishment, denunciation, or deterrence” (ROS[136]). That assessment was open on the evidence.

54. In so concluding, the sentencing judge expressly took into account the following matters: (1) that the respondent had “battled severe and continued abuse, social isolation and has significant mental issues as a result”; that he had “offended in the extenuating circumstances” described; that he appeared “to have been punished almost all of his life”; that there was “little need for further punishment”; that “the community ha[d] absolutely nothing to fear from him”; and that there remained a need to “encourage the offender to continue on with his remarkable progress, including the commencement of his study – his third degree – of law” (ROS[115]-[117]); (2) that the fact of a conviction would do little to support the respondent not to offend in the future, or to protect the community, and that the imposition of strict conditions on a two year bond would perform the same function (ROS[125]); and (3) that the recording of a conviction had the potential to operate to his disadvantage in view of his professional aspirations (ROS[124], [135]).

55. Adopting the language of Sofronoff P in ZB, the exceptional circumstances of this case make it one in which the respondent’s short period of serious criminal offending as explained and understood, whilst certainly serious and an “insult to the common good”, is not such as must deserve the community’s denunciation by the recording of convictions. The respondent was subjected to horrific sexual abuse as a child. That abuse shaped his emotional and sexual development. The serious offending to which he pleaded guilty occurred whilst he was in a “hypomanic state” due to extreme stress suffered as a result of assistance provided in proceedings prosecuting one of his abusers. It was not suggested that he should be subjected to any further period of imprisonment. He has good prospects of rehabilitation and, having completed two science degrees, is in the process of completing a degree in law and Aboriginal studies. The recording of his convictions may not assist the progress of that rehabilitation.    

56. The analysis so far does not address two remaining arguments of the Crown, which can be disposed of shortly.

53. First, accepting that statistics have been found to be of limited use in determining a sentencing appeal, the Crown nevertheless notes that the Judicial Information Research System’s statistics do not indicate that there is any record of a non-conviction being imposed for multiple offences pursuant to Crimes Act, s 66C(3). That may be so. However, the absence of such cases is no doubt explained by the most exceptional and rare circumstances of the present case.

54. Secondly, in its written submissions the Crown suggests that the sentencing judge’s reliance on the decisions in R v Mauger and R v Le [2019] NSWSC 633 was misplaced, where in each of these cases, the sentencing judge found that the objective seriousness of the charged offence was at the “very lowest end” or “very bottom” of the scale or range of seriousness. In each of those cases, no conviction was recorded, in the former after an appeal and in the latter by the trial judge.

55. In dealing with those cases, the sentencing judge referred to Brennan J’s construction of the phrase “nature of the offence” in Walden v Hensler (1987) 163 CLR 561 at 577; [1987] HCA 54, when appearing in similar legislation to Sentencing Procedure Act s 10(3), as “taking account of the conduct which constitutes the offending and the actual circumstances in which the offence is committed”. Her Honour appears to have treated these references to the offending conduct and circumstances of the offending as taking into account matters beyond those which would be taken into account in assessing the objective seriousness of the offending. That probably involved error, but not error which is relied on or which was material to her Honour’s reasoning. Rather, in addressing the question raised by s 10, which plainly permits consideration of extenuating circumstances, her Honour’s focus remained on the respondent’s conduct and the circumstances of his offending, as well as her assessment of the objective seriousness of that offending (ROS[131], [133]).

56. For these reasons, the appeal should be dismissed. The sentence imposed was not manifestly inadequate notwithstanding that it did not include the recording of convictions for the undoubtedly serious offences to which the respondent pleaded guilty.

**********

Decision last updated: 01 February 2022