R v DP

[2019] NSWCCA 55

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v DP [2019] NSWCCA 55
Hearing dates:	8 March 2019
Date of orders:	18 March 2019
Decision date:	18 March 2019
Before:	Simpson AJA at [1]; Fullerton J at [2]; Wilson J at [57]
Decision:	1. The Crown appeal is allowed. 2. The sentence imposed in the District Court is quashed. 3. The respondent is sentenced to a term of imprisonment of 9 years, comprising a non-parole period of 5 years and 3 months commencing 24 March 2018 and expiring 23 June 2023, with a balance of term of 3 years and 9 months expiring on 23 March 2027.
Catchwords:	CRIME - Appeals - Crown appeal against sentence - aggravated sexual intercourse with a child without consent - effect of the complainant’s consequent pregnancy - pregnancy was a circumstance of aggravation - whether the sentencing judge erred in assessing the objective seriousness of the offending - whether the sentence was manifestly inadequate
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Attorney General for NSW v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8 Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35 Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 R v Baker [2000] NSWCCA 85 R v Barker [2016] NSWCCA 193 R v Darwich [2018] NSWCCA 46 R v KB; R v JL; R v RJB [2011] NSWCCA 190 R v Phelps [2018] NSWCCA 191 R v Pullen [2018] NSWCCA 264 R v RD [2014] NSWCCA 103 Yeung v R [2018] NSWCCA 52
Category:	Principal judgment
Parties:	The Crown (Applicant) DP (Respondent)
Representation:	Counsel: E Balodis (Crown) A Boe / S McGee (Respondent)   Solicitors: Solicitor for Public Prosecutions (Crown) Gregory J Goold Solicitors
File Number(s):	2015/334274
Decision under appeal	Court or tribunal: District Court Date of Decision: 06 July 2018 Before: Gartelmann SC DCJ File Number(s): 2015/334274

Judgment

1. SIMPSON AJA: I agree with Fullerton J.

2. FULLERTON J: Pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions appeals the sentence of imprisonment of 7 years, comprised of a non-parole period of 4 years and a balance of term of 3 years, imposed by Gartelmann SC DCJ on 6 July 2018 after the respondent was convicted of one count of aggravated sexual intercourse without consent with a child between the ages of 10 and 16 years, namely 11 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The age of the complainant was the statutory circumstance of aggravation provided for in s 61J(2)(d).

3. The maximum sentence for that offence is 20 years to which a standard non-parole period of 10 years attaches.

4. The sentence was imposed after a trial in which the sentencing judge sat without a jury.

5. The Notice of Appeal was served on the respondent on 6 September 2018.

The facts for sentencing purposes

6. The sentencing judge summarised the facts for sentencing purposes referable to the evidence adduced at trial as follows:

1. The complainant (CM) was born on 24 July 1997.

2. From the age of two and a half until age 12 CM lived with her great aunt (LM). LM’s sister is the respondent's wife. CM stayed with the respondent's family regularly for respite care. She slept in the respondent’s bed when she did so.

3. CM gave birth to a child (PM) on 23 February 2010. As the time of conception was assessed as spanning three weeks either side of 10 June 2009, CM was aged 11 years at the time she conceived. The respondent was aged 47 the time of the offence.

4. CM provided investigating police with a variety of accounts as to the males with whom she had, or may have had, sexual intercourse at or about the time of conception. These accounts included a purportedly recovered memory of an incident when she woke in the respondent’s bed to find someone having sexual intercourse with her who she could not name. She also told the investigating police that the respondent’s sons had sexual intercourse with her. The sentencing judge disregarded this evidence for sentencing purposes, being unable to find, to the requisite standard, that the single event the subject of the recovered memory actually occurred or that the respondent's sons had sexual intercourse with her, or if they did that the respondent had any knowledge of it.

5. The respondent's guilt was based entirely on evidence of opportunity coupled with DNA evidence which established that it was 2.3 billion times more likely that PM’s DNA profile would be generated if the respondent were his father rather than an unknown, unrelated male in the community, and between 2000 and 3000 times more likely respectively that the respondent was PM's father than either of his non-excluded sons.

6. The evidence in the trial established little else about the precise facts and circumstances in which the offence was committed.

The respondent’s case on sentence

7. The respondent tendered a report from Ms Wakely, forensic psychologist, dated 20 June 2018. He also read an undated affidavit from his sister. He did not give evidence on sentence or at his trial.

8. The respondent also tendered a doctor's report which recorded medications prescribed for blood pressure and pain relief. He was treated in the past with a gastric bypass for obesity and sleep apnoea.

9. The respondent’s sister attested to her brother providing daily care for their aged parents who were in deteriorating health and who were likely to be relocated to a nursing home if the respondent were imprisoned. His sister also attested to the ill-health of the respondent's wife.

10. Ms Wakely noted the respondent was aged 56 at the time of the report, being the eldest of three children. She further reported that the respondent had been educated to Year 10 before qualifying as an automotive engineer, that he holds formal qualifications in transport and logistics, and is licenced to drive heavy vehicles. She noted the respondent had been married for 36 years with four sons aged between 30 and 36 and recorded the respondent's assertion that he had a lengthy history of community involvement coaching children’s football and athletics without any complaint of misconduct.

11. A discrepancy in the respondent's verbal and performance functioning was noted under psychometric testing and that an overall score was not reported upon for that reason. Ms Wakely did offer the opinion, however, that the respondent’s functioning was likely to have been better before he was charged.

12. Finally, she noted that the respondent maintained his denial of any wrongdoing and became distressed when discussing his conviction. Actuarial measures of his risk of reoffending placed him within the “below average risk category” which was assessed as reducing to a very low risk category as the respondent ages.

The finding of objective seriousness and the circumstances of aggravation in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

13. The sentencing judge identified the following factors as relevant to his assessment of the objective seriousness of the respondent’s offending as within the mid-range:

1. the nature of the act constituting sexual intercourse;

2. the circumstance in which the offence was committed;

3. CM’s age; and,

4. the disparity between CM’s age and the respondent's age.

14. After noting that the nature of the sexual intercourse was, self-evidently, penile-vaginal intercourse, the circumstances in which the offence was committed were described by the sentencing judge as follows:

There is no evidence that the offence was other than an isolated occurrence. As already noted, the evidence does not permit any finding regarding the circumstances of the incident in which the sexual intercourse occurred. Accordingly, there is no evidence that the offender used force, threat or coercion to compel the victim's compliance during the offence or her subsequent silence. Nor is there any evidence of grooming behaviour on the part of the offender to obtain the victim's compliance.

15. The sentencing judge considered the absence of any features of the offending other than what he concluded must have occurred for CM to have conceived of limited significance for sentencing purposes given CM’s age and the considerable disparity between her age and that of the respondent.

16. In dealing with CM's age the sentencing judge observed that it was:

… not towards the upper end of the age range covered by the statutory circumstance of aggravation constituting the offence. As a general proposition, the younger the victim of a child sexual offence the more serious the offence.

17. The sentencing judge also treated CM’s age at the time she gave birth, when she was neither physically nor psychologically developed, and the fact that she was forced to deal with her pregnancy without any prenatal care or support, as matters of “serious aggravation”. He made that finding despite noting there was no evidence that the respondent knew that CM was pregnant until close to the birth of the child such that it could not be said he knowingly failed to ensure she received appropriate assistance.

18. His Honour further emphasised that despite the lack of evidence regarding the facts and circumstances in which the offence was committed, there was no room for doubt that it occurred when the respondent was in a position of familial trust, being, in effect, CM’s great uncle, and in a position of authority since she regularly stayed with him and his family for respite care and shared a bed with him. These factors, coupled with the respondent not using protection against the risk of pregnancy when he committed the offence, were treated as statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act.

19. Finally, the sentencing judge acknowledged the psychological harm CM suffered by the commission of the offence as reflected in her victim impact statement. He made express mention of “the invidious position of CM giving birth to a child when she was not equipped to do so and through no fault of her own” and the subsequent “traumatic experience of separation from her child” who was taken into State care upon his birth. The sentencing judge went on to say, however:

CM referred in her victim impact statement to harm potentially resulting from conduct of others in addition to that resulting from the present offence. It is impossible now to isolate the harm referable solely to the present offence. Nevertheless, the presumed harm resulting from the present offence must be acknowledged, regardless of whether CM also suffered harm as a result of the action of others.

CM in her victim impact statement confirmed the offence has had a profound impact upon her life, as one could only reasonably expect in the circumstances.

20. The sentencing judge made no finding as to whether the degree of emotional harm CM suffered from giving birth to a child whilst she was herself a child was substantial as a further circumstance of aggravation pursuant to s 21A(1)(g) of the Crimes (Sentencing Procedure) Act.

21. In concluding that the objective seriousness of the offence was in the middle of a very wide range of offending comprehended by the offence created by s 61J(1) of the Crimes Act, he said:

Any offence of aggravated sexual assault is serious. The range of acts, circumstances and consequences potentially constituting such offences is very wide. In of all the circumstances, the objective seriousness of the present offence is, in my assessment, in the middle of that very wide range for these serious offences.

The sentencing judge’s assessment of the respondent’s subjective case

22. The sentencing judge accepted that the absence of prior convictions was a factor which “warranted leniency”. He was also satisfied that the respondent had reasonably good prospects of rehabilitation and that he posed a relatively low risk of reoffending.

23. While his Honour was not satisfied that there was any causal relationship between the respondent's mental functioning and his offending, such as might suggest his moral culpability for the offence be reduced, he was satisfied that some moderation of the weight to be given to general deterrence was warranted and that his poor mental functioning would result in a more onerous experience of custody.

24. He also noted that the respondent was first charged in November 2015 and that he was to be sentenced two years and seven months after he was charged and nine years after the offence was committed. Although the delay between the commission of the offence and sentence was not treated as a mitigating factor (given the lack of evidence that the respondent had achieved rehabilitation in the interim), the sentencing judge did take into account, as a factor in mitigation, that the respondent appeared to have suffered a deterioration in his mental functioning in the period since he was charged. The sentencing judge also regarded the respondent having been subject to strict conditional bail over two years and four months as warranting “some recognition in the determination of sentence”.

The reasons for sentence

25. The sentencing judge regarded the available sentencing statistics as of limited utility. He acknowledged that the sentence to be imposed must be appropriate in all the circumstances and commensurate with the purposes of sentence in s 3A of the Crimes (Sentencing Procedure) Act. In that regard, he noted that general deterrence, the protection of the community and denunciation were important considerations, as was the harm done to CM. He was also of the view that the respondent’s subjective circumstances were such that specific deterrence was not an issue deserving of particular weight in the sentencing exercise.

26. Finally, although the sentencing judge did not regard the hardship to the respondent's wife or parents as justifying the avoidance of or a substantial reduction in an otherwise appropriate sentence, he was satisfied that the delay, coupled with the respondent’s mental and physical health, justified an alteration in the statutory ratio between the non-parole period and the balance of term in s 44(1) of the Crimes (Sentencing Procedure) Act.

The grounds of appeal

27. The sole ground of appeal contends that the sentence was manifestly inadequate, being so far below the range of sentences that could be imposed consistently with sentencing standards that the Court would conclude that the sentence was “unreasonable” or “plainly unjust”.

28. The Crown’s filed submissions identified a number of sentencing errors which were said to either constitute error or have contributed to a sentence that was “unreasonable” or “plainly unjust”.

1. a failure to properly undertake an assessment of the objective seriousness of the offence;

2. error in finding that the objective seriousness of the offending was in the middle of the range;

3. failure to give weight, or sufficient weight, to the principle of general deterrence;

4. affording excessive weight to the respondent's subjective circumstances;

5. failure to have adequate regard to the maximum penalty in the standard non-parole period.

The principles governing Crown appeals

29. Section 5D(1) of the Criminal Appeal Act relevantly provides that the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the sentence pronounced by a sentencing court and that the Court, in its discretion, may vary the sentence and impose such sentence as to it seems proper.

30. However, unless an error of principle in the approach of the sentencing court is clearly demonstrated or, in the absence of specific error, there has been a demonstrated failure by a sentencing court to properly exercise the discretion which the law reposes in it, the power of the appellate court to interfere with the sentence imposed at first instance is not engaged (see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [61]-[63]).

31. In Dinsdale, Gleeson CJ and Hayne J said (at [6]):

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

32. In R v Barker [2016] NSWCCA 193 Hoeben CJ at CL (Bathurst CJ and Price J agreeing) said:

[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a “limiting purpose” for such appeals and, by contrast with the Court’s jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is “plainly unjust” by reason of its manifest inadequacy) for the mere “correction of error in the individual sentencing proceedings” Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8).

[53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is “plainly unjust”) the Crown must:

(1) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);

(ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);

(iii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).

[54] …

[55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R.

33. These principles have been consistently restated with approval (see R v Phelps [2018] NSWCCA 191 at [50], R v Pullen [2018] NSWCCA 264 at [34] and, more recently, Attorney General for NSW v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8, Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 and Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35).

34. Even if error is established, s 5D(1) provides that the Court may decline to intervene and re-sentence in the exercise of its residual discretion. It is for the Director of Public Prosecutions to persuade the Court that even if error is made out, the sentence imposed on the respondent at first instance should be varied (see CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346).

The Crown’s submissions

35. The Crown’s submissions complain of excess weight being given to the respondent's subjective circumstances and inadequate weight given to the principle of general deterrence. However, on the hearing of the appeal, neither was pressed as constituting a specific sentencing error. That concession was properly made. It is consistent with the long standing approach of this Court that a ground of appeal (whether it is agitated by an offender or the Crown) which argues that a failure to give “sufficient weight” to, or to have “proper regard” to, a matter said to be relevant to the exercise of the sentencing discretion should be narrowly confined (see R v Baker [2000] NSWCCA 85 at [11]). It is also consistent with the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. At [22]-[24], the plurality acknowledged that the weight to be given to evidence adduced on sentence, and the weight to be given to the sometimes conflicting purposes of sentencing, is a matter intrinsic to the exercise of the sentencing discretion. As Gageler J said (at [53]) in a separate judgment, a ground of appeal framed in terms of “weight” is incapable of constituting specific sentencing error. At most, taken with other circumstances, it might be indicative of a manifestly inadequate sentence.

36. I also note that on the hearing of the appeal the Crown did not seek to develop what was said in the filed submissions to be latent error in the sentencing judge’s failure to have “adequate regard” to the maximum penalty and the standard non-parole period; a concept which I take to be a different way of formulating a complaint about the weight or significance of each as an indicator of an appropriate sentence, as distinct from a complaint that they were ignored altogether.

The assessment of objective seriousness – the competing submissions

37. On the hearing of the appeal the Crown maintained the submission that the sentencing judge erred in his appointment of the objective seriousness of the respondent's offending as in the middle of the range and not “above the mid-range” as the Crown submitted in the sentencing hearing. The Crown submitted that, given the facts which were established by the evidence, including the various matters which aggravated the offending, the sentencing judge’s emphasis on the absence of any detail of the precise facts and circumstances of the offending was both immaterial and ultimately productive of error in the appointment of objective seriousness in the mid-range.

38. The respondent submitted that characterising the offending as in the mid-range was open to the sentencing judge who was exercising a broadly based discretion, and that the finding was not reviewable as a discretionary error in the House v The King sense for that reason. The respondent accepted that CM’s pregnancy was a circumstance of aggravation, but submitted that there is no authority for the proposition that where a pregnancy results from a breach of s 61J(1) the offence must be characterised as above mid-range.

Consideration

39. In R v KB; R v JL; R v RJB [2011] NSWCCA 190, Bathurst CJ (Buddin and Harrison JJ agreeing) said:

[51] As Howie J pointed out in Mirza v R [2007] NSWCCA 248 at [16] the level of objective seriousness of a particular offence is a matter on which minds might differ. It is an assessment which is classically within the role of the sentencing judge. In Mulato v R [2006] NSWCCA 282 Spigelman CJ stated the position as follows (at [37]):

"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."

In that case Spigelman CJ found that the characterisation adopted by the sentencing judge was open, although he expressed hesitation in so finding.

[52] In the same case, Simpson J set out the position as follows (at [46]):

"The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated inHouse v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."

[53] This is particularly so in the case of an offence of this nature which can occur in a very wide variety of different circumstances. That is not to say that appellate courts should not intervene once they have reached a concluded view that the sentencing judge was in error in his or her assessment of the objective seriousness of the offence. However, the approach in Mulato supra, emphasises the need for caution in reaching such a view and the importance of paying due regard to the opinion of the sentencing judge.

[54] The Crown in its submissions stated that the sentences failed to mark the seriousness of the offence. It described the offence as a grave example of an offence committed in company particularly having regard to the simultaneous acts of digital/vaginal penetration and fellatio engaged in by KB and JL respectively. It submitted that his Honour failed to refer to this. Further, it is submitted that his Honour erred in failing to take into account the vulnerability of KS due to her gross intoxication as an aggravating factor. It submitted that the fact that KS was aged 12 years was trivialised in favour of the mitigation constituted by each respondent's mistaken belief as to her age.

40. That case concerned a breach of s 66C(2) of the Crimes Act (namely the offence of aggravated sexual intercourse with the child between 10 and 14 years in company) to which each of the respondents entered pleads of guilty. KB and JL were sentenced to suspended sentences of 15 months whilst RJB was directed to enter into a section 9 bond. The Crown appealed against the inadequacy of sentences imposed on each of the respondents. The appeal was dismissed.

41. What is instructive for present purposes is that the case exemplifies that a breach of s 66C(2) of the Crimes Act and a breach of s 61J(1) may be committed in a range of circumstances with a corresponding breadth in the range of offending comprehended by both sections. This was acknowledged by the sentencing judge in the extract at [21] above.

42. While his Honour’s assessment of the objective seriousness of the offending might have been expressed differently consistently with the circumstances of aggravation he found established on the evidence, I am not persuaded that his appointment of the offending “in the middle of a very wide range” was not open to him, the more so given that the distinction between offending in the mid-range or above it is imprecise to say the least. I would also add my agreement with the observations of McCallum J (as her Honour then was) in Yeung v R [2018] NSWCCA 52 where, at [19]-[30] (Hoeben CJ at CL and Simpson JA agreeing), her Honour said that the appointment of objective seriousness referable to a notional point on a spectrum of culpability (although convenient as a shorthand descriptor) is not a necessary component of the sentencing task, and to express objective seriousness in that way is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender.

Was the sentence manifestly inadequate - the competing submissions

43. The Crown submitted that in the totality of the circumstances bearing upon the appointment of a sentence to properly reflect the application of sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act, including, in particular, an acknowledgement of the gravity of the offending and the interplay of a range of factors which, in combination, operated to aggravate the seriousness of the offending, a sentence of 7 years with a non-parole period of 4 years, measured against the statutory guideposts of a maximum sentence of 20 years and a non-parole period of 10 years, was manifestly inadequate.

44. At the hearing of the appeal the respondent’s counsel acknowledged the sentence was lenient but submitted that it was not erroneously lenient. Contrary to the submissions of the Crown, counsel submitted that the sentencing judge identified each of the individual circumstances of aggravation and evaluated their collective weight appropriately. It was further submitted that although the sentencing judge noted the lack of detail in the circumstances of the particular sexual offending the subject of the charge, he made it clear that was immaterial in his assessment of the seriousness of the offending.

Consideration

45. In a sentencing environment such as presented in this case after a judge alone trial, where the sentencing judge ought to be permitted as much flexibility in sentencing as was consonant with the application of proper sentencing principles, for the Crown to demonstrate that the sentence is unreasonable or plainly unjust necessitates this Court finding that some substantial wrong has occurred in the appointment of the sentence or, to put it another way, that there must have been a failure to properly exercise the sentencing discretion. In Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 French CJ, Hayne, Kiefel and Bell JJ said:

[24] To expose the error in principle, it is necessary to begin by examining what is meant by an "available range" of sentences for an offender.

[25] Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment. The exercise of discretion is subject to applicable statutory provisions and judge-made law. In particular, when sentencing offenders for offences against the laws of the Commonwealth, a sentencing judge is bound to apply those provisions of Pt IB of the Crimes Act 1914 which govern the sentencing of federal offenders. That Part provides the fundamental starting point for the sentencing of offenders for federal offences.

[26] Reference to an "available range" of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order "is unreasonable or plainly unjust" and the appellate court infers "that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance". In the field of sentencing appeals, this kind of error is usually referred to as "manifest excess" or "manifest inadequacy". But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.

[27] The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some "substantial wrong has in fact occurred" in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

[28] Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an "available range" of sentences, stating the bounds of an "available range" of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall.

46. It seems to have been accepted at first instance and on the appeal that there is no available range of sentences for comparable offending capable of being derived from the sentencing statistics. R v RD [2014] NSWCCA 103, the only authority to which the parties referred at first instance and on appeal, is in my view readily distinguishable on a number of bases. In that case, brought by way of a successful Crown appeal against the inadequacy of an aggregate sentence of 3 years with a non-parole period of 18 months, the respondent had pleaded guilty to three counts of having sexual intercourse with a child aged between 10 and 14 years contrary to s 66C of the Crimes Act, which the Crown accepted in full discharge of an indictment charging multiple breaches of s 61J(1). Although the victim of the sexual offending in that case was aged between 12 and 13 at the time of the offences, and although she also gave birth to a child as a result, unlike the respondent to this appeal the respondent was aged between 19 and 20, and had emerged from a home life which was marked by serious deprivation, chaos and neglect. Although in that case I agreed that the Crown appeal should succeed and the respondent should be re-sentenced to an aggregate sentence of 5 years and 6 months with a non-parole period of 2 years and 9 months, I expressed the view that neither the sentences indicated by Hamill J at [65], nor the aggregate sentence the Court imposed, should be taken as reflecting sentences that should have been indicated on the aggregate sentence imposed at first instance for what I considered to be serious and repeated sexual abuse of a young child; observations with which Ward JA agreed.

47. In my view, in the present case the combination of features of aggravation additional to the age of CM as an element of the aggravated breach of s 61J(1) for which the respondent was to be sentenced, warranted a finding of a very high degree of moral culpability, despite the sentencing judge’s findings as to the nature and circumstances of the offending being bereft of detail (a circumstance which I consider both unremarkable and immaterial to the sentencing task). Unlike the offender in RD, the respondent's age and maturity disentitle him to any leniency. Although there was some evidence that his mental and physical health had deteriorated as a result of the charge, a state of affairs which it appears was exacerbated by the delay in the respondent being tried on indictment, I do not regard that or other features of his subjective case as operating in mitigation of his offending to any significant extent.

48. Given the maximum of 20 years and a standard non-parole period of 10 years as indicators of the seriousness of the offending against the section, I am satisfied that a sentence of 7 years with a non-parole period of 4 years is manifestly inadequate.

The residual discretion

49. The respondent submitted that the Crown has not discharged the onus of persuading the Court that the residual discretion should not be exercised in his favour.

50. Two factors were advanced in support of that proposition. The first that the Crown has failed to make good the submission that intervention is warranted to meet the limiting purpose of a Crown appeal where no permissible range of sentences for like offending have been assembled. Secondly, it was submitted that where a significant term of imprisonment was imposed at first instance, the Court would not be persuaded that public confidence in the administration of criminal justice would be undermined if the sentence were not increased.

51. As to the first matter, I have already noted that because of the particular circumstances of this offending a range of sentences for comparable offending is simply not available (see also the observations of Hamill J in RD at [43] to similar effect). In those circumstances the remarks of White JA in R v Darwich [2018] NSWCCA 46 at [10] are apposite:

Section 5D(1) provides that the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the court may seem proper. The subsection does not say that the Court of Criminal Appeal can only re-sentence if the imposition of a varied sentence is essential in order to provide guidance or governance to sentencing courts. If that were the only relevant question, there would never be an occasion to increase a sentence on a Crown appeal because it could always be said that it would be sufficient for the Court of Criminal Appeal to give guidance and governance by saying what sentence should have been imposed, without actually imposing an increased sentence. That would be inconsistent with the terms of s 5D(1).

52. As to the second matter, in my view the sentence imposed fell far short of a sentence that adequately addressed the principles of sentencing and the gravity of the respondent’s offending, where he was sentenced after trial and where there was no evidence of remorse. In addition, I am compelled to the conclusion that this Court should intervene in circumstances where the sentence failed to adequately reflect the deleterious physical and psychological impact on CM or the seriousness of a sexual assault on a vulnerable child resulting in a pregnancy, being a defining circumstance of the gravity of the offending in this case.

Re-sentence

53. The respondent did not adduce any additional evidence on re-sentence.

54. For its part, the Crown did not submit that this Court would make any different finding to that reached by the sentencing judge as to special circumstances or the resultant alteration in the ratio in s 44(1) of the Crimes (Sentencing Procedure) Act between the non-parole period and head sentence.

55. As the High Court noted in Barbaro (also referred to above), where a sentence is set aside as manifestly excessive, and the Court determines that the sentencing discretion must be re-exercised and a different sentence imposed, that exercise neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall.

56. Taking into account the evidence before the sentencing judge and after undertaking the necessary synthesis of all relevant sentencing factors in accordance with an orthodox sentencing exercise, the orders I propose are as follows:

1. The Crown appeal is allowed.

2. The sentence imposed in the District Court is quashed.

3. The respondent is sentenced to a term of imprisonment of 9 years, comprising a non-parole period of 5 years and 3 months commencing 24 March 2018 and expiring 23 June 2023, with a balance of term of 3 years and 9 months expiring on 23 March 2027.

57. WILSON J: I agree with Fullerton J.

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Amendments

19 March 2019 - Paras 38, 41, 46 and 47 - s 66J(1) amended to s 61J(1)

Decision last updated: 19 March 2019