R v Jackson

[2024] NSWCCA 156

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Jackson [2024] NSWCCA 156

Hearing dates:

14 June 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Before:

Kirk JA at [1]
Campbell J at [2]
McNaughton J at [3]

Decision:

(1) Allow the appeal.

(2) Quash the sentence imposed on the respondent in the District Court on 22 February 2024, and in lieu thereof, sentence the respondent to a term of imprisonment of 6 years with a non-parole period of 4 years, commencing on 16 November 2023. The date the respondent is first eligible for release to parole is 15 November 2027.

Catchwords:

CRIME – sentencing – appeal by Crown against sentence – sexual intercourse without consent – where offending occurred in circumstances of geographical isolation – where age and power differential between victim and respondent – whether sentence manifestly inadequate – whether residual discretion should not be exercised – appeal allowed

Legislation Cited:

Crimes Act 1900 (NSW), ss 61I, 61J

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44

Cases Cited:

AA v R [2024] NSWCCA 132

Bugmyv The Queen (2013) 249 CLR 571; [2013] HCA 37

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

CMB v Attorney General forthe State ofNew South Wales (2015) 256 CLR 346; [2015] HCA 9

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Dionnet v R [2009] NSWCCA 85

Greenv The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

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

Kelly v R [2022] NSWCCA 189

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469

R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451

R v O’Connor [2014] NSWCCA 53; (2014) 239 A Crime R 487

R v Shortland [2018] NSWCCA 34

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Songcuan(No 3) [2023] NSWSC 183

Stein v R [2023] NSWCCA 324

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Rex (Appellant)
Glen William Jackson (Respondent)

Representation:

Counsel:
G Newton SC (Appellant)
J Lo Schiavo (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Appellant)
Abernethy Gore Solicitors (Respondent)

File Number(s):

2022/128520

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 February 2024

Before:

M L Williams SC DCJ

File Number(s):

2022/128520

HEADNOTE

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

The respondent, Glen William Jackson, was convicted of four counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). He was acquitted of an alternative count of aggravated sexual intercourse without consent. The offending took place on a farm near Goulburn where the responded resided with his 10 year old daughter. The victim’s brother, JM, lived in a shed on the farm. Two other men were staying at the property.

On 24 April 2021, the victim and JM’s girlfriend travelled to Goulburn train station where they were met by the respondent and JM. The respondent drove them to his farm about 40 minutes away. The victim was 19 years old, and the respondent was 62 years old. The respondent provided the victim with a room to stay the night. JM and his girlfriend stayed in the shed. That evening, the victim found herself alone talking with the respondent. During their conversation, he directed highly sexual comments towards her. She made it clear she was not interested, excused herself and went to bed. The victim later woke to the light being turned on and saw the respondent in the doorway of her room. He pulled off her pants and underwear by force while she said no and resisted the advance. The respondent engaged in digital-vaginal penetration, cunnilingus, oral intercourse, and penile vaginal intercourse, knowing the victim was not consenting.

In his remarks on sentence, the sentencing judge noted the respondent’s short criminal record, unremarkable childhood, absence of traumatic experiences, work history, past involvement in a motorcycle gang, three failed marriages, five children, lack of any acute mental health symptoms and strong support from family and friends. His Honour found there to be no evidence of contrition or remorse, and nothing to suggest good prospects of rehabilitation. The offending was accepted to be largely opportunistic, and each count was accepted to be a serious example of sexual intercourse without consent. His Honour also found special circumstances but provided no reasons for doing so.

On 22 February 2024, the respondent was sentenced to an aggregate term of 3 years and 6 months’ imprisonment with a non-parole period of 1 year and 10 months. The ratio of the aggregate non-parole period to aggregate head sentence was 52.4 per cent. The indicative terms were specified for each count as follows:

Count 1:   2 years, with a non-parole period of 14 months.

Count 2:   2 years and 6 months, with a non-parole period of 16 months.

Count 3:   2 years and 6 months, with a non-parole period of 16 months.

Count 5:   3 years, with a non-parole period of 20 months.

The Crown appealed against the sentence on one ground: that the aggregate sentence imposed by the sentencing judge was manifestly inadequate.

The Court (per McNaughton J, Kirk JA and Campbell J agreeing), allowing the appeal and re-sentencing the applicant, held:

As to Crown sentence appeals generally

1. The primary purpose of Crown appeals against sentence is to establish principles for the governance and guidance of courts that have the duty to sentence convicted persons. To succeed on such an appeal, the Crown must both: (a) establish error of the kind referred to in House v The King (1936) 55 CLR 499; and (b) negate any reason why the residual discretion of the Court not to interfere should be exercised: [48], [57].

House v The King (1936) 55 CLR 499; [1936] HCA 40; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9, applied.

As to manifest inadequacy

2. In circumstances where the inadequacy of a sentence is so marked that it amounts to an affront to the administration of justice and risks undermining public confidence in the criminal justice system, judicial intervention is justified. In this respect, manifest inadequacy is a conclusion and does not depend on establishing specific error: [49]-[50].

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, applied.

3. The offending in all four offences was serious. There were no particularly compelling subjective factors. In addition, the combination of low indicative sentences and high levels of notional concurrency has the effect that the aggregate sentence fails to reflect the total criminality of the offending. In light of the legislative guideposts and lack of entitlement to a statutory discount, the sentence imposed is manifestly inadequate: [51]-[56].

R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, applied.

As to the residual discretion

4. There is no evidence of the respondent’s health that would affect the exercise of the discretion. Further, the submission that the respondent in his mid-sixties is of “advanced age” is unpersuasive. That the respondent had custody of two children prior to his arrest is not relevant to the exercise of the discretion. The swift institution of the appeal; the success of the manifest inadequacy ground; the seriousness of the offending; the absence of any contrition and remorse; the need for general deterrence, specific deterrence, punishment and denunciation combine to satisfy the Court that it should not exercise its discretion to decline to intervene: [57]-[65].

R v O’Connor [2014] NSWCCA 53; (2014) 239 A Crim R 487, referred to.

As to re-sentence

5. The Court adopted the factual findings of the sentencing judge and noted the vulnerability of the victim, the age and power differential, the geographical isolation, the respondent’s subjective case as well as the relevant comparative cases and sentencing statistics. After making a finding of special circumstances, the Court re-sentenced the respondent to an aggregate sentence of 6 years’ imprisonment with a non-parole period of 4 years: [66]-[75].

Dionnet v R [2009] NSWCCA 85; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Stein v R [2023] NSWCCA 324; R v Shortland [2018] NSWCCA 34; Kelly v R [2022] NSWCCA 189, referred to.

JUDGMENT

1. KIRK JA: I agree with McNaughton J.

2. CAMPBELL J: I agree with McNaughton J.

3. McNAUGHTON J: The Crown has appealed against the claimed manifest inadequacy of the aggregate sentence imposed on the respondent, Glen William Jackson, who was convicted after a jury trial of four counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 14 years’ imprisonment with a standard non-parole period (“SNPP”) of 7 years. He was acquitted of an alternative count of aggravated sexual intercourse without consent (s 61J(1)), the circumstance of aggravation being the infliction of actual bodily harm. He was sentenced by Williams SC DCJ (“the sentencing judge”) on 22 February 2024, to an aggregate term of 3 years and 6 months’ imprisonment with a non-parole period of 1 year and 10 months commencing on 16 November 2023. The ratio of the aggregate non-parole period to aggregate head sentence is 52.4 per cent.

4. At the time of the offending, the victim was 19 years old and the respondent was 62 years old. The offences were committed at the respondent’s country property. Count 1 involved an act of digital-vaginal penetration, Count 2 involved an act of oral penetration, Count 3 involved an act of cunnilingus performed by the respondent on the victim and Count 5 was an act of penile-vaginal intercourse.

5. I am of the view that the Crown appeal should be allowed, and the respondent’s sentence should be increased to a term of imprisonment of 6 years’ imprisonment with a non-parole period of 4 years.

The facts

6. Although the respondent has continued to maintain his innocence, following the trial the parties produced a three-page agreed facts document in light of the evidence at trial.

7. The sentencing judge summarised those facts in the remarks on sentence. Those facts are as follows.

8. At the time of the offending, the respondent lived on a farm near Goulburn with his 10 year old daughter, RJ. The victim’s brother, JM, lived in a shed on the farm.

9. On 24 April 2021, the victim and JM’s girlfriend travelled to Goulburn train station where they were met by the respondent and JM. This was the first time that the victim had met the respondent. The respondent drove them to his farm about 40 minutes away.

10. There were two male friends of the respondent in their forties (AB and CD) also staying at the farm. That night the group and the respondent’s daughter sat around a table. AB and CD came and went at various times. Throughout the evening the victim had about six sips of alcoholic drinks and smoked some cannabis.

11. JM and his girlfriend went to bed in the shed where JM was living. The respondent told the victim that she could stay in a spare room inside the house, and RJ showed her that room.

12. Later in the evening, when JM and his girlfriend went to bed, the victim found herself alone with the respondent outside the house. She was having a cigarette and he was talking to her. She tried to keep the conversation short because she wanted to go to bed. He said: “Aren’t you going to talk to me. Come sit over here, I’ll get you a drink.” She opted for a soft drink. He provided one but she did not drink it.

13. They spoke about the horses; she sat and listened to him. Then the respondent said: “I’m going to bend you over there and pull your knickers down.” She was shocked and replied with words to the effect of “no thanks” and said she was going to bed. The respondent touched her on the leg and said: “Just let me lick it”. She said no, and that she wanted to go to bed.

14. The victim excused herself and went to bed, wearing tracksuit pants and a jumper. After falling asleep, she was woken by the light turning on. She saw the respondent at the door and asked what he was doing. The respondent said that he was drunk and “I want to fuck you”. She was sitting up in bed and said: “I’m not interested”. The respondent said: “pull your pants down” and “I’m not one to fuck with, you don’t know who I am”. He kept telling her to pull her pants down, while walking towards her. She said: “No, I really don’t want to do this”. He “yanked” at her pants and said: “Come on, get them off, get them off”. He pulled one leg of her pyjama pants off and pulled her underwear off that leg. The victim resisted by trying to pull her clothing back up.

Count 1 – digital-vaginal penetration

15. The respondent leant on the victim, placing all of his weight on her, and put his hands down to her vagina. She froze. She couldn’t move. She said: “No, please, I really don’t want to do this”, but this made him angrier and more forceful. She said he was: “just shoving his fingers in my vagina, but like really roughly, and like, it was just hurting”.

Count 3 - cunnilingus

16. He ignored her as she continued to say no, told her to lay on the bed and performed cunnilingus on her. The victim said that: “He was licking my vagina…I was laying down and he had my legs like pried open because I was trying to close them, and he just had his hands there, and was just doing it so I couldn’t move”.

Count 2 – oral intercourse

17. The respondent put his hand on the victim’s neck and repeatedly said words to the effect of: “Can you suck my penis” and “give me a blow”. She said no, and kept saying no. He stood up with his penis in his hand and put his hand on her neck and told her to “suck it”. She complied because she was worried what would occur if she did not. His penis was in her mouth for about 20 seconds.

Count 5 – penile-vaginal intercourse

18. He was found not guilty of Count 4. Count 5 was a charge in the alternative to Count 4.

19. The respondent told her to put his penis into her vagina, and she said: “no, I’m not, I don’t want to”. He grunted. He lent on her, placing all of his body weight down on her, with her legs bent either side of him, and with the respondent between her legs leaning on her. He put his penis into the victim’s vagina and was “humping”. The victim continued to say no repeatedly. His penis was in her vagina for about one or two minutes.

20. In the morning, the victim left the spare room. She found JM’s girlfriend and told her what happened. The respondent drove the victim, JM and his girlfriend back to Goulburn train station as JM did not have a car. On the train, the victim rang her father and told him what had happened. She also arranged to be taken to Queanbeyan Hospital where she underwent a sexual assault examination.

Remarks on sentence

21. After noting the maximum penalty and SNPP as important yardsticks in the sentencing process, as well as the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge also recorded that the respondent did not receive any discount on sentence, and that he maintained his innocence. His Honour then set out the facts based on the agreed facts above.

22. The sentencing judge further noted that the respondent’s criminal record was not lengthy. In 1974, he was charged with an offence of carnal knowledge, committed at the age of 16. He was given 9 months custody for that offence. There was also a series of relatively minor matters: driving matters dealt with in the Children’s Court, possessing a loaded firearm in 1982 dealt with by way of a fine, a low range PCA in 2003 dealt with by a fine and disqualification, and a resist police dealt with by fine in 2015.

23. The respondent had been in custody since the day of the verdicts on 17 November 2023. He had also spent one day in custody following his arrest on 4 May 2023, which was to be taken into account.

24. Referring to a psychological report authored by Dr Matthew Taylor, and tendered on behalf of the respondent, the sentencing judge noted that the respondent had an unremarkable childhood with no traumatic experiences. He left school to commence an apprenticeship at 14 years of age. He had worked in various businesses, including owning a number of tattoo shops for many years. He had been operating a business raising and training horses on his property until he went into custody. His three marriages had all ended in divorce. He had had some involvement with a motorcycle gang for a number of years, but not recently. He has five children. His two youngest children aged 17 and 12 years had lived with him prior to his incarceration, and they had a shared interest in specialised rodeo events.

25. His Honour noted there was no description of any acute mental health symptoms, although Dr Taylor observed symptoms of depression and anxiety. The respondent was not willing to participate in treatment for a condition of adjustment disorder diagnosed by Dr Taylor and refused contact with a Justice Health psychiatrist. It was said that these symptoms were proportionate to his circumstances.

26. Referring to references provided to the Court from family and friends of the respondent, the sentencing judge stated they all spoke highly of him. His Honour also noted that there was medical evidence as to some orthopaedic and other health problems, but nothing in particular was put in relation to that history.

27. Referring to a sentencing assessment report, the sentencing judge recorded that the respondent has a close and supportive relationship with his five children, particularly his two youngest daughters. He reported that he separated from his wife six months prior to the offending. His Honour then stated:

“[The respondent] expressed little understanding of the impact of the offending on the victim and his focus appeared largely fixated on the impact on himself. Due to his poor attitude and continued denial of the offending Community Corrections considered his current ability to engage in meaningful intervention [as] poor and he was assessed as being at a medium risk of reoffending or average risk of committing a further sex offence.”

28. The sentencing judge found there to be no evidence of contrition or remorse, and nothing upon which to base a finding that the respondent’s prospect of rehabilitation was good, or that there was no likelihood of reoffending. The report recorded that he expressed shock at being charged with the offences and he appeared fixated on placing blame on the police and the justice system for his legal status. He also attempted to place blame on the victim and attempted to rationalise the offences.

29. The sentencing judge accepted that the offending was largely unplanned and opportunistic, and the respondent’s decision to commit the offences was probably made shortly before he entered the house. Further, he was entitled to leniency for his “relatively good character” in the ensuing 50 years since the offence of carnal knowledge.

30. The sentencing judge accepted the Crown submission that each count was a serious example of an offence under s 61I of the Crimes Act. In coming to that determination, his Honour noted:

“There is little contest between the positions of the parties as to much of the material to be covered in the sentencing exercise. Indeed, [the respondent’s] written submissions accept that the Crown’s submissions on sentence were accurate in both fact and law.

The Crown submissions set out the necessity to assess the objective seriousness of the offending and note that there is no hierarchy of sexual acts constituting sexual intercourse, but it is generally accepted that some forms of sexual activity may be regarded as more serious than others.

The Crown points to the following factors, namely: the victim was vulnerable because the offending occurred on a geographically isolated farm; and the act of digital penetration was rough. The Crown acknowledges that non-consensual intercourse by digital penetration is generally less serious than an offence of penile penetration, but each case depends on its facts. The acts of oral intercourse occurred in the context of the victim being held down. The penile/vaginal intercourse was unprotected. There was an implicit threat in the offender saying ‘I’m not one to fuck with you don’t know who I am’ and that such a threat was calculated to negate any resistance coming from the victim.

Events in the outdoor area preceding the offending made it clear the victim was not sexually interested in the offender and he must have understood the lack of consent before later entering her bedroom, so there was some limited degree of planning.

The jury must have clearly accepted the victim as a witness of credit and preferred her account of events over that of the offender and his friends, who also gave evidence. His account which painted the victim as the sexual aggressor was clearly rejected by the jury.”

31. The sentencing judge accepted that the principle of totality required an effective sentence to be imposed which represented a proper period of incarceration for the total criminality involved.

32. The sentencing judge referred to a number of comparative judgments, and he reviewed the statistics which he said were a useful check against the sentence he imposed. His Honour found special circumstances but provided no reasons for doing so.

The sentence

33. An aggregate term of 3 years and 6 months’ imprisonment with a non-parole period of 1 year and 10 months was imposed. The indicative terms were as follows:

1. Count 1: 2 years, with a non-parole period of 14 months;

2. Count 2: 2 years and 6 months, with a non-parole period of 16 months;

3. Count 3: 2 years and 6 months, with a non-parole period of 16 months; and

4. Count 5: 3 years with a non-parole period of 20 months.

Appeal on the ground of manifest inadequacy

34. The Crown relies on a single ground of appeal: that the aggregate sentence imposed by the sentencing judge was manifestly inadequate.

35. It is contended that each of the indicative terms, although not amenable to appeal, were also unreasonable and may be used as a guide in assessing the manifest inadequacy of the aggregate sentence.

36. The Crown further contends that excessive allowance was made for special circumstances, without reasons, which further contributed to the manifest inadequacy of the aggregate non-parole period.

37. The Crown submits that it has brought the appeal to engage the discretion of the Court to specifically correct the erroneously lenient sentence imposed and to provide sentencing courts with further governance and guidance to ensure that due consideration is given by such courts to the importance of adequately punishing persons who engage in multiple counts of sexual intercourse without consent, in the context of aggregate sentencing.

Crown submissions

38. The Crown contends that the aggregate sentence of 3 years and 6 months’ imprisonment with a non-parole period of 1 year and 10 months for four “serious examples” of sexual intercourse without consent is so low as to be unreasonable or plainly unjust. The Crown relies, in particular, on the following matters:

1. The aggregate sentence is manifestly inadequate by reference to the legislative guideposts of the maximum penalty of 14 years’ imprisonment and the SNPP of 7 years, in addition to the four counts of offending. The number of counts is an important factor on sentencing, rendering the criminality greater than if there had been just one count: Stein v R [2023] NSWCCA 324, especially at [99] (Wilson J, Fagan and Sweeney JJ concurring); R v Shortland [2018] NSWCCA 34 at [38].

2. The respondent was found guilty after trial and there was no discount available for a guilty plea.

3. Each offence was a “serious example” of the offending. The victim was 19 years old and the respondent was 62 years old. He persisted in the face of clear and repeated refusals of his advances. She was vulnerable given her location at the respondent’s isolated country property. He used his body weight and digitally penetrated the victim roughly before committing three more sexual assaults. The penile-vaginal intercourse was unprotected. As noted by the sentencing judge, the respondent “must have understood the lack of consent” prior to the events. Later, the respondent held her down during the act of oral intercourse having made a threat immediately before committing the offences “calculated to negate any resistance”. It was inherent in those findings (and wholly consistent with the agreed facts) that the respondent knew the victim was not consenting. The respondent’s understanding of the victim’s lack of consent before he entered her bedroom was also underpinned by the finding that “there was some limited planning”.

4. Whilst totality was referred to by the sentencing judge, the inadequacy of the aggregate term is also demonstrated when one considers the indicative terms, each of which is unreasonable, together with the excessive degree of notional concurrency of the indicative terms. Even taking into account that the offence occurred as part of a single incident, the indicative term for the most serious offence (Count 5) was 3 years with a non-parole period of 20 months, and so the aggregate sentence represented notional accumulation of only 6 months on the head sentence, and only 2 months on the non-parole period for the three preceding offences.

5. There is nothing in the respondent’s subjective case that could justify the leniency extended to him in sentencing for four counts under s 61I following trial, especially given his lack of contrition and remorse and his lack of insight into the effect of his offending on the victim.

6. The finding of special circumstances and the sentencing judge’s failure to give reasons for the finding was another difficulty. No submission was made by either party that a finding of special circumstances should be made either in written or oral submissions. Even if it were assumed that such an argument could be made, based on age related health issues of the respondent and possible psychological issues, “the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence[s]” remains: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [63] (Spigelman CJ). Here the allowance for special circumstances was excessive and contributed to the manifestly inadequate non-parole period.

7. The Crown noted that only four cases of a comparative nature were cited in the court below, and the limitations of attempting to compare one case with a small number of other cases. Further, acknowledging that sentencing statistics were a blunt tool, the Crown pointed to relevant statistics and submitted that they supported the conclusion that the four indicative terms are manifestly inadequate when all relevant factors in this case are taken into account.

Respondent’s submissions

39. The respondent contended that the lenient sentence was justified on a number of bases.

40. It was submitted there was only one count of penile-vaginal penetration, and the other three counts of sexual intercourse were less serious. The short duration of each offence was also highlighted, given the penile-vaginal penetration lasted only 1 to 2 minutes and the oral intercourse about 20 seconds. The respondent noted that all four offences constituted a single course of conduct and the offending overall was very short in duration. It was contended by the respondent that whilst there was a threat made to the victim, there was no physical violence. This was clarified in oral submissions to mean that there was no punching, kicking or similar act.

41. The respondent took issue with the Crown’s contention that the victim was vulnerable on the basis the offending occurred on a geographically isolated farm. It was submitted that there were other individuals sleeping at the farm that night, including the victim’s brother, his girlfriend, the respondent’s daughter and his two friends. It was submitted that the victim was able to seek help from any of these individuals and she did in fact seek help the next morning from her brother’s girlfriend.

42. The Crown noted in oral submissions before this Court that that submission was at odds with the respondent’s submissions before the sentencing judge, where it was put in writing: “The victim was in an unfamiliar environment and was powerless to resist the offender.”

43. The respondent also emphasized that the offending was unplanned and opportunistic and the decision to commit the offences was probably made shortly before he entered the room.

44. As to his subjective features, his good character as demonstrated by his character references from family and friends was highlighted, as was his lack of recent involvement with a motorcycle gang. In addition to the respondent’s diagnosis of adjustment disorder with anxious and depressed mood, there was also medical evidence of orthopaedic and other health problems such as ongoing pain and restricted joint movement in his right shoulder, chronic obstructive pulmonary disease, coronary heart disease, gallstones, gastro-oesophageal reflux disease and osteoarthritis, which would make custody more onerous. As the Crown pointed out in oral submissions on the appeal, however, the currency of those conditions was not based on evidence that was before the sentencing judge and is not consistent with what was put below. There was no particular submission made below about his health conditions.

45. As to the lack of reasons for the finding of special circumstances, the respondent pointed to s 44(3) of the Crimes (Sentencing Procedure) Act, which provides that the failure of a judge to give reasons for finding special circumstances does not invalidate the sentence. In any event, it was submitted that the respondent’s “advanced age” justified a finding of special circumstances: R v Songcuan (No 3) [2023] NSWSC 183. It was contended that the respondent would suffer hardship arising out of his knowledge that a lengthy sentence of imprisonment would likely destroy any reasonable expectation of useful life after release and, in particular, would affect his relationship with his two youngest daughters.

46. The ultimate submission made by the respondent was that whilst the sentence may be lenient, it was not erroneously lenient.

Consideration

47. As stated most recently in AA v R [2024] NSWCCA 132 at [4] (Ward P and Wilson J):

“As R A Hulme J said in JM v R [2014] NSWCCA 297 at [40], there can be no appeal against an indicative sentence because an indicative sentence is not a sentencing order. The appeal lies only against the aggregate sentence. See also PN v R [2024] NSWCCA 86 at [47], which followed and applied JM and the long line of similar authority thereafter. Although it is not axiomatic, where there is clear error in an indicative term, it may signal error in the aggregate term. Much will depend upon the circumstances of the individual case and the level of notional concurrence and accumulation involved in the determination of the aggregate sentence. In some cases, any error in an indicative term will be subsumed and overtaken by the application of the principle of totality such that there is no discernible capacity for the error to have had an impact upon the aggregate sentence. In others, it will be found to have contributed to or occasioned error in the sentencing order of the court.”

48. Crown appeals against sentence are brought for the primary purpose of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons.  The Crown needs to show the sentencing judge has made an error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505; CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [54] (Kiefel, Bell and Keane JJ). Even if error is established, the Court is required to consider whether the Crown’s appeal should nonetheless be dismissed in the exercise of its residual discretion (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]). The Crown must “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (CMB at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ), quoting R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [12]).

49. It was also observed in Green that cases might arise where the Court “concludes that the inadequacy of the sentence is so marked that it amounts to ‘an affront to the administration of justice’which risks undermining public confidence in the criminal justice system.  In such a case, the Court would be justified in interfering with the sentence”: Green at [42] (French CJ, Crennan and KiefelJJ).

50. Manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].

51. This matter involves four counts of serious sexual offending against a vulnerable young woman, who was barely an adult, by a then 62 year old man, previously unknown to her, on an isolated regional property with no independent transport, and where the options for meaningful intervention were seriously circumscribed. Whilst the victim’s brother, JM, was nearby (albeit in a different dwelling), he was an employee of the respondent, with the inequality of power which inevitably arises from such a relationship. JM’s girlfriend was similarly affected in her ability to meaningfully assist the victim. That there were two other men in their forties staying there, who were friends of the respondent, can hardly be regarded as a realistic source of advice or assistance.

52. Whilst it can be accepted there was limited planning leading up to the offending, there is no doubt that the respondent was well aware of the victim’s lack of consent. The threat made by the respondent, “I’m not one to fuck with you don’t know who I am”, was clearly calculated to dissuade the victim from resisting.

53. Further, in relation to the contention that the duration of the offending reduced its seriousness, as noted in R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [110], as cited in Kelly v R [2022] NSWCCA 189 at [33]:

“This Court has frequently held that the duration of offending is no measure of its seriousness. Regrettably, as this Court has observed, sexual offences of allegedly short duration, minutes, rather than hours, can have lifelong effects”.

54. There is no doubt that this was serious offending. The combination of factors including the isolated location, the age and power differential between the respondent and the victim, the threat made calculated to negate resistance, the use of the respondent’s full weight during the course of the offending, together with the placing of his hand on her neck during some of the offending clearly supports the finding of the sentencing judge that these were serious examples of offences under s 61I of the Crimes Act. Also notable is the lack of any contrition and remorse, and any particularly compelling factors in his subjective case.

55. When these factors are considered in the context of the legislative guideposts of 14 years imprisonment, with the SNPP of 7 years, and the fact that the respondent went to trial, disentitling him to any discount, the aggregate sentence of 3 years and 6 months’ imprisonment with a non-parole period of 1 year and 10 months for four offences can be seen to be manifestly inadequate.

56. It would appear this erroneously lenient sentence came about not only because the indicative sentences failed to reflect the seriousness of each of the counts, but also because the level of notional concurrency meant that the aggregate sentence failed to reflect the total criminality of the offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].

Residual discretion

57. Having found that the aggregate sentence is manifestly inadequate, it remains for the Crown to satisfy the Court that it should not exercise its discretion to decline to intervene.

58. In this case, there was no delay in the institution, service or listing of the appeal. The sentence was delivered on 22 February 2024. On 27 February 2024, the respondent was notified by the Crown that the institution of a Crown appeal was being considered, and the Notice of Appeal was filed on 21 March 2024.  The conduct of the Crown before the sentencing judge did not contribute to the errors now relied upon. The respondent is not imminently eligible for parole, that eligibility arising on 15 September 2025.

59. The Crown also submits that although the principal purpose of the determination of a Crown appeal is to provide guidance to sentencing judges, the sentence actually imposed is still of considerable importance: R v O’Connor [2014] NSWCCA 53; (2014) 239 A Crim R 487 at [88].

60. The respondent, on the other hand, contends that the residual discretion not to interfere should be exercised. The respondent points to his age, contending that his “advanced age” of 65 at the time of the appeal was such that “any increase in sentence makes it more likely that the respondent will die in custody and that this increase in time spent in custody will be significantly more onerous”. It was also submitted that “[h]is advanced aged is also relevant to any consideration of reoffending”.

61. It was also contended that the deteriorating health of the respondent since sentence was a factor which may favour the exercise of the discretion. The respondent referred to material which was before the sentencing judge including the part of the Dr Taylor’s report which said that “his condition might also deteriorate” in custody. Without any evidence to support the contention, it was submitted that the respondent’s mental health had deteriorated. It was also submitted that given the respondent’s “advanced age” his physical health is “also likely to deteriorate, especially given his current medical conditions and the difficulty in managing their symptoms in custody.”

62. As the Crown pointed out in oral submissions in this Court, however, there is no evidence that any deterioration has occurred, and Dr Taylor’s report also included the possibility that his symptoms and condition may resolve with time. In any event, there is no evidence before this Court of anything that has occurred since sentence.

63. The respondent also pointed to the limited guidance which would be provided to sentencing judges from this matter because of the respondent’s subjective circumstances “particularly his custody of two young children, and special circumstances of advanced age”. The Crown, in oral submission, took issue with the relevance of his past custody of the two children to the issue of residual discretion, but conceded it could be relevant to the exercise of re-sentencing, should there be any.

64. As noted above, there is limited evidence before the Court in relation to the respondent’s health, and none that would affect the exercise of the discretion. The submissions in relation to the respondent’s so-called “advanced age” are unpersuasive, given he is only in his mid-sixties. Further, it is difficult to see the relevance to the issue of the residual discretion of the respondent’s custody of two children prior to his arrest. I agree that it may be relevant to the exercise of re-sentencing.

65. In all of the circumstances, I am of the view that the Crown has satisfied the Court that it should not exercise its discretion to decline to intervene. The swift institution of the appeal combined with the success of the Crown’s single ground of appeal, the seriousness of the offending, the absence of contrition and remorse and the need for general deterrence, as well as specific deterrence, punishment and denunciation are such that the Court should intervene to increase the respondent’s sentence to properly reflect those matters. 

Resentence

66. Having found error, it is necessary to exercise the sentencing discretion afresh. Given the agreement of facts by the parties in the court below, I adopt the factual findings of the sentencing judge. It is appropriate to note that the victim was a vulnerable person pursuant to s 21A(2)(l) of the Crimes (Sentencing Procedure) Act based on the combined circumstances of the age and power differential between her and the respondent, together with her geographical isolation. I adopt the sentencing judge’s findings in relation to the respondent’s subjective case, and specifically note that he did not offend in any way for many years before this most recent offending. I also note his responsibility, prior to his arrest, for his two youngest children.

67. Even though a selection of four cases has limited comparative utility, I now turn briefly to the four cases referred to before the sentencing judge, and before this Court.

68. Dionnet v R [2009] NSWCCA 85 involved an applicant who had been convicted following trial of two counts of s 61I offences, with the only issue at trial being the identity of the assailant. The appeal against sentence was dismissed against a concurrent term of 10 years’ imprisonment with 7 years non-parole. It was decided prior to Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. The victim who was on a working holiday stayed at a boarding house. She noticed the manager staring at her on two occasions on the day that she checked in. That night, she awoke to find the applicant in her room. He punched her in the temple and only stopped when she promised not to scream. He had brought condoms with him, and said he was there to have sex with her. She complied out of fear. There were two counts of penile-vaginal intercourse. The applicant was 40 years old at the time of the offences. He had agoraphobia and spent much of his time indoors, and suffered from depression, sleep disturbance and post traumatic stress disorder symptoms after having been assaulted when working as a chef. He had a criminal record of no great significance. He denied the offences, and there was no finding of good prospects of rehabilitation. He maintained he was the victim of a police conspiracy. The main issue in the appeal related to the psychiatric and psychological evidence and no finding of reduced moral culpability. There was a finding by the sentencing judge that the offences fell below the middle of the range of seriousness. On appeal, the complete concurrency of the terms was described as a “further measure of leniency”.

69. In Stein v R [2023] NSWCCA 324, Wilson J, with Fagan and Sweeney JJ concurring, dismissed an appeal against an aggregate sentence of 6 years’ imprisonment with a non-parole period of 3 year and 7 months. The applicant was convicted at trial of two counts of s 61I offences committed in a single incident. Count 1 was digital-vaginal penetration and Count 2 was penile-vaginal intercourse. The victim had just turned 16 years old and met the applicant at a friend’s home where she stayed the night. The applicant was 26 years old. She was woken by the applicant and allowed him to share a bunk with her as the top was covered with items. Despite her protests he sexually assaulted her. He had no criminal record, and leniency was extended. He had a childhood diagnosis of Asperger’s and Autism Spectrum Disorder, ADHD, and received a disability allowance. There were different psychiatric opinions as to the severity of the mental conditions. His moral culpability was not reduced as he was found to have known the victim did not consent and his mental condition was not causally connected to the offending. Count 1 was found to be within mid-range and Count 2 within mid-range or higher. Custody would be more onerous for the applicant. Some partial accumulation was required.

70. In R v Shortland [2018] NSWCCA 34, a Crown appeal against suspended sentences was upheld by Basten JA and RA Hulme J (with Hidden J dissenting). The respondent was resentenced to an effective full-time term of 2 years with a non-parole period of 15 months. He was found guilty at trial of three counts against s 61I. The offender was a similar age to the victim (he was 25 years old, and she was 31 years old). After a party, the victim stayed at the home of the respondent and his partner. He sexually assaulted her in the laundry. Count 1 was penile-vaginal intercourse, Count 2 was fellatio and Count 3 was penile-vaginal intercourse. The respondent was of relatively good character, had family responsibilities and there was some delay in the matter.

71. In Kelly v R [2022] NSWCCA 189, Adamson J, with Beech-Jones CJ at CL and Campbell J concurring, dismissed an appeal against a sentence of 5 years and 9 months’ imprisonment with a non-parole period of 3 years and 9 months. The applicant had been convicted at trial of one count of s 61I, sexual intercourse without consent. The victim met the applicant at a pub after work. He was sexually interested in her, but she was not interested in him. Later they were at a house with others, and he was intoxicated. She went to sleep in a bedroom, and awoke to him having penile-vaginal intercourse with her. The applicant was 19 years old, had a good work history and ethic. The offence was characterised as mid-range. There was no remorse, guarded prospects of rehabilitation, onerous conditions of custody, special circumstances for the first time in custody and the need for assistance with mental health issues.

72. The Court has also been provided with sentencing statistics for s 61I offences, which are, of course, a blunt tool, as repeatedly stated by this Court. They have, however, provided some limited assistance in this case.

73. The Crown has conceded that there would be a basis to find special circumstances to allow for an alteration of the statutory ratio based on some mental health issues which have been identified in Dr Taylor’s report, together with anxiety associated with the separation from his two youngest children. On this basis, I would make a finding of special circumstances.

74. In my view, in all of the circumstances, the following sentences are indicated:

1. Count 1: 2 years and 6 months’ imprisonment;

2. Count 2: 3 years’ imprisonment;

3. Count 3: 3 years’ imprisonment;

4. Count 5: 4 years’ imprisonment.

75. I would impose an aggregate sentence of 6 years’ imprisonment with a non-parole period of 4 years.

76. The orders I propose are as follows:

1. Allow the appeal;

2. Quash the sentence imposed on the respondent in the District Court on 22 February 2024, and in lieu thereof, sentence the respondent to a term of imprisonment of 6 years with a non-parole period of 4 years, commencing on 16 November 2023. The date the respondent is first eligible for release to parole is 15 November 2027.

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Decision last updated: 21 August 2024