R v Pickard

[2023] NSWCCA 7

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Pickard [2023] NSWCCA 7

Hearing dates:

26 September 2022

Date of orders:

8 February 2023

Decision date:

08 February 2023

Before:

Garling J at [1];
Adamson J at [2];
N Adams J at [3].

Decision:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

Catchwords:

CRIMINAL LAW – appeal against aggregate sentence imposed after trial - indecent assaults by tutor on two students - where sentencing judge declined to find special circumstances - whether sentencing judge erred in not providing sufficient reasons for declining to find special circumstances - no error established - application for leave granted - appeal dismissed

CRIME – aggravated indecent assault - where victims under the authority of the applicant - where two victims between the age of 16 and 18 years old

Legislation Cited:

Crimes Act1900 (NSW), s 61M(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44 (1), 44(2A), 44 (2B), 53A, 54B

Cases Cited:

Calhoun (a pseudonym) v R [2018] NSWCCA 150

CM v R [2020] NSWCCA 136

GP v Regina [2017] NSWCCA 200

Haak v R [2022] NSWCCA 28

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

JM v R [2014] NSWCCA 297

Le v R [2022] NSWCCA 243

Martinez v R [2022] NSWCCA 12

Mattar v R [2012] NSWCCA 98

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Quayle v R [2010] NSWCCA 16

R v Fido [2004] NSWCCA 172

R v Novakovic [2004] NSWCCA 437

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

Rizk v R [2020] NSWCCA 291

Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353

Category:

Principal judgment

Parties:

Wayne Kenneth Pickard (Applicant)
Rex (Respondent Crown)

Representation:

Counsel:
Mr N Adams SC (Applicant)
Ms E Wilkins SC (Respondent Crown)

Solicitors:
Paul A. Brown & Co. Solicitors (Applicant)
Solicitor for Public Prosecutions NSW (Respondent Crown)

File Number(s):

2018/328928

Publication restriction:

Non-publication order regarding the identity of the complainants and anything that may tend to identify them.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 June 2020

Before:

Sutherland SC DCJ

File Number(s):

2018/328928

JUDGMENT

1. GARLING J: I agree with the orders proposed by N Adams J, and with her Honour’s reasons.

2. ADAMSON J: I agree with N Adams J.

3. N ADAMS J: By notice of appeal filed 9 June 2022 the applicant, Wayne Kenneth Pickard, seeks leave to appeal against the aggregate sentence imposed on him by Judge Sutherland SC on 19 June 2020 in relation to 17 aggravated indecent assaults committed contrary to s 61M(1) of the Crimes Act1900 (NSW). The assaults were committed on two separate victims who were both High School students the applicant tutored for their Higher School Certificate (“HSC”) examinations. The circumstance of aggravation was that the victims (who were both over the age of 16 and under the age of 18 years) were under the authority of the applicant at the time of the offences.

4. The offence of aggravated indecent assault contrary to s 61M(1) of the Crimes Act carries a maximum penalty of 7 years imprisonment. A standard non parole period of 5 years imprisonment is prescribed in the table behind s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”).

5. The applicant pleaded not guilty to all charges except for counts 11 and 17 to which he pleaded guilty on 10 March 2020. A trial proceeded before his Honour and a jury of twelve that day. On 18 March 2020, the jury returned verdicts of guilty on the remaining 15 counts.

6. His Honour imposed an aggregate sentence pursuant to s 53A of the Sentencing Act of 5 years imprisonment to commence on 19 June 2020 and expire on 18 June 2025 with a non parole period of 3 years and 9 months to expire on 18 March 2024.

7. Although three grounds of appeal were initially relied upon, two of them were abandoned by the applicant by notice of abandonment filed on 12 September 2022.

8. The sole ground of appeal relied upon at the hearing was ground 2, which was in these terms:

“Ground of Appeal (formerly Ground 2):

His Honour erred by failing to adequately consider the appropriateness of a finding of special circumstances.”

9. During the hearing, the applicant sought and was granted leave to amend this ground to reflect the argument put at the hearing, namely, that the reasons provided for declining to make a finding of special circumstances were inadequate. On 29 September 2022, a further amended ground of appeal was filed in these terms.

“There was credible material put before the court during the sentencing hearing capable of amounting to ‘special circumstances’. Accordingly, his Honour, if intending either to make a finding that there were no ‘special circumstances’; or a finding that even though circumstances existed which in principle were capable of amounting to ‘special circumstances’, his Honour was not prepared to find them in fact; was obliged to provide an explanation of why he was not going to make such a finding.

His Honour did not do so and as a result, fell into error.”

10. The reference to “special circumstances” in this proposed ground of appeal is to s 44 (2B) of the Sentencing Act. Section 44 (1) relevantly provides that, when sentencing an offender to imprisonment for an offence, the court must first set the non parole period, being that portion of the sentence which the offender is required to serve in custody. The applicant received an aggregate sentence under s 53A of the Sentencing Act. Section 44(2A) of that Act provides that a court imposing an aggregate sentence of imprisonment in respect of two or more offences on an offender may set one non parole period for all the offences to which the sentence relates after setting the term of the sentence.

11. Section 44 (2B) of the Sentencing Act provides as follows:

(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(Emphasis added.)

12. Section 44(2B) is in similar terms to s 44(2) which applies when a sentence is being imposed for one offence. Most of the relevant principles derived from the decisions of this court concerning s 44(2) of the Sentencing Act apply to s 44(2B). As I observed in CM v R [2020] NSWCCA 136 at [26]:

“The requirement in s 44(2) that, unless ‘special circumstances’ are found, the ‘balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence’ has been variously described for convenience as either ‘the one third rule’ or the ‘statutory ratio.’ I propose to refer to it as the statutory ratio. In practical terms, if the one third rule is applied, the non-parole period would not be less than 75% of the head sentence. To put this another way, the statutory ratio between the non-parole period and the head sentence, in the event that special circumstances are not found, would not be less than 75%/25%.”

13. No complaint is made in this application about the length of the head sentence. The sole complaint is as to the proportion of that head sentence the applicant will be required to serve in custody.

Background

14. I have taken the following summary of the relevant facts from the remarks on sentence.

15. By the time of the proceedings on sentence, the applicant was 66 years old. Since 1992, he had conducted a tutoring business in which he predominantly offered tutoring services in English studies for students in year 11 and 12, studying for the HSC. Generally, the students would attend on the applicant for one-hour sessions for which he charged $100. The applicant holds a Doctorate in Literature.

16. In 2010, the applicant and his wife moved to Newcastle. From that time, he opened an “office” in an apartment in Glebe to conduct his tutoring sessions. The apartment was also his place of residence while he stayed in Sydney to tutor students. The tutoring lessons generally occurred in that apartment at a desk, on which there was various study paraphernalia. There were two chairs at the desk. The applicant would sit at one, and the student in the other.

17. Of the 17 counts, 13 pertained to the first victim “GH” and the remaining four pertained to the second victim “CN”. The two victims did not know each other, went to different schools and the offences committed against GH occurred four years earlier than those committed on CN.

First victim – GH

18. GH was 16 years old when she first met the applicant for tutoring services in 2012. He was recommended by parents of other children at the school GH attended. During the tutoring sessions, the applicant sat in “close physical proximity” to her as they were seated next to each other looking at a laptop screen. GH described how the applicant would regularly and consistently physically touch her in ways which did not initially appear to have any sexual connotation. This involved him from time to time putting his arm around the back of the chair and pulling her close to him to look at the screen. The applicant did these things very naturally whilst continuing to conduct the lesson without stopping or wavering. They made GH feel uncomfortable.

19. The applicant’s behaviour made GH feel more uncomfortable from about October 2012. Year 12 HSC studies for the 2013 HSC started at that time. GH voiced her concerns to her then boyfriend. She also stopped wearing make-up and began wearing loose fitting clothing to her tutoring sessions, so as not to highlight her figure. She gave evidence that she did not wish to encourage the behaviour which had made her feel uncomfortable.

20. On 4 November 2012, whilst he was talking to GH, the applicant traced around her breasts on the outside of the jumper she was wearing with his fingers. As he did so he continued to talk about the English topic they were then focused (count 1).

21. The next three indecent assaults occurred between November and December 2012. The first of the occasions involved the applicant touching GH’s breast with his hand underneath her jumper, on top of her bra (count 2). On the next occasion the applicant pulled GH close to him whilst seated, put his hand inside her bra and touched her breast (count 3). During the same tutoring session, GH described the applicant rubbing his hand on her upper thigh and across her pubic area “very firmly” on the outside of her jeans (count 4).

22. On the last tutoring session in 2012, the applicant pulled GH close while talking about the lesson. He then put his hands underneath GH’s jumper and felt both of her breasts under her bra (count 5). He then rubbed her pubic area again on the outside of her jeans (count 6).

23. On GH’s first lesson back, on 3 February 2013, following the Christmas and New Year period, the applicant pulled her close to him with his hand over her back whilst continuing to talk about the topic of the lesson. He put his hand underneath her jumper and inside her bra (count 7). Later during that lesson, he rubbed her thigh and pubic area firmly over her clothes. Whilst he did this, he spoke to GH about helping her get into university. The applicant then put his hand inside her jeans but on the outside of her underwear and started rubbing in her hip area (count 8).

24. The following week, on 10 February 2013, the applicant put his hand inside GH’s top and squeezed her left breast very firmly (count 9). He then put his hand inside her pants and rubbed her pubic area on the outside of her underwear (count 10).

25. On the subsequent tutoring session, GH came directly to the applicant from school. She was wearing her school uniform, which included a skirt. During this tutoring session, the applicant put his arm around GH’s shoulder and pulled her close to look at the laptop screen. The applicant then put two fingers of his right hand between the two top buttons of her school uniform and put his hand inside her bra and squeezed her breasts very firmly (count 11). She moved away from the applicant to prevent him from touching her. He then pulled her chair closer to him. She had her legs crossed and her hands pressed down into her lap. The applicant then put his arm underneath her dress. She could feel his arm underneath her hands, and he pushed up underneath her hands which were in her lap (count 12).

26. GH felt “really panicked” and moved her chair away from the applicant. He then turned her chair, so she was facing him directly. The applicant picked up her crossed leg and uncrossed it from her other leg. The applicant put his hand on her knee and moved his hands up her leg to the top of her thighs. He then moved his hand to her pubic area and put his hand inside her underpants at which time he moved his fingers down towards her vagina, touching her pubic area and her vaginal lips (count 13). Whilst he was doing this, he was saying to her, “I’m going to get you an English Oxford dictionary, you want me to do that for you? I’m going to do that for you [GH] do you want me to do this for you?”

27. At the time he was saying this to her, GH believed that he was trying to get her to say “yes” to those questions as a way of getting her to say “yes” to the way he was touching her. She gave evidence at trial that at this point she tucked her body in such a way “as much is possible to stop his touching my vagina”.

28. Shortly after this occurred GH’s mother telephoned her to say she was running late and hung up. GH pretended that her mother was still on the line and that she had told GH that she was waiting downstairs and she had to leave.

29. GH went downstairs and waited for her mother on the street, which was unusual. During that time, she telephoned her boyfriend and cried whilst telling him that her tutor had touched her. She did not initially tell her mother what had occurred. Instead, she exchanged text messages with her boyfriend who came over to see her. After she disclosed what had occurred, he told her to tell her parents. She made partial disclosures to her mother that night but was reluctant at that stage to go on any further detail.

30. The following day, the Year 12 coordinator at her school saw GH speaking with a close friend and crying. A generalised complaint was made to that coordinator. During that disclosure, GH expressed a reluctance to make a complaint because she was distressed at the thought of not having the applicant tutor her. She explained that he had given her confidence and told her that she could get an ATAR of 98 if she followed what he taught her. She was particularly concerned because her Extension 2 English project was on the poet Emily Dickinson which was the subject of the applicant’s PhD.

31. When she returned home from school that day GH disclosed the sexual assaults to her mother. The following day, she spoke to the school counsellor. Due to the school’s compulsory reporting obligations, arrangement was subsequently made for GH to attend the police station which she did on 18 February 2013.

32. GH did not go back to the applicant for tutoring, she elected not to go to trial at that time as it would be too distressing in her HSC year especially as she had already lost her English tutor.

Second victim – CN

33. The offences committed against the second victim, CN, occurred in 2016, some years after the offences against GH occurred. CN was in Year 11 when the applicant became her tutor. She attended the applicant’s Glebe apartment on Saturdays. The applicant had also tutored CN’s brother some years prior.

34. CN’s account of physical touching by the applicant during tutoring sessions were very similar to those described by GH. Initially, the touching CN described had no apparent sexual connotation. For example, the applicant would pat her on the knee in order to make a point of emphasis about what was being discussed. However, over a period of months there were subtle changes to the applicant’s behaviour. His hands slowly progressed up CN’s thigh over several months, while still remaining below her waist.

35. On one occasion, the applicant placed his hands on either side of CN’s crotch on the outside over her clothing. Some of his fingers were wrapped around her legs while his thumbs were on the inside of her thighs, on each side of her vagina. She described feeling his thumbs “digging in” (count 14). There was a repetition of the same physical behaviour the following week (count 15).

36. The next occasion CN described was the first time the applicant put his hands under her clothes. He put his hands under her jumper but over her singlet and bra and rested his hands on her breasts (count 16).

37. The last specific act described by CN involved the applicant putting his hands under her clothes. It was accepted that although CN could not remember exactly what she was wearing, the applicant was resting his hands on the outside of her bra. The applicant was not rubbing or squeezing or moving his hands, but resting them on top of her breasts. This act constituted count 17.

38. CN described that during these interactions the applicant kept talking without pause about the lesson or particular topic they were discussing. Despite feeling uncomfortable, CN did not say anything at the time as she was focussing on what she was being taught.

39. CN’s first complaint was to a male friend who gave evidence at the trial. He gave evidence that at the time of this complaint CN asked him whether he would put up with something bad for a better future. Despite him telling her that she should tell her parents she did not. She gave evidence at trial that her parents had always heavily emphasised the importance of education and doing well. Her marks were improving, and she did not want to sacrifice those achievements by ceasing the tutoring.

40. On one occasion, her brother drove her to a tutoring lesson, and she told him what was occurring. He called Crime Stoppers who told him she should go to police. He took her to Cabramatta police station where one of the Detectives told them that if she made a statement to police, it would be a long drawn out process and she really should consider whether she wanted to proceed and make a statement. CN declined to make a statement to police at that time in light of her desire to continue with the tutoring.

41. After the disclosure to her brother, CNs brother accompanied her and sat in on all the tutoring sessions. The applicant did not physically touch her in any way during those sessions. CNs brother was only able to do this for four weeks. When he ceased attending the tutoring sessions, the applicant started touching her again. Despite this, she continued to attend as she progressed towards her HSC.

42. In about July 2017, one of CN’s friend spoke to a staff member about how stressed CN was. CN subsequently spoke to a therapist and made some complaint in passing. Due to the compulsory reporting obligations CN was contacted by police in November 2017. She provided a formal statement but did not wish the matter to proceed at that time. The police officer who took her statement ascertained that there had been the previous complaint by GH. He arranged for GH to participate in a pretext telephone call during which time the applicant apologised to her and said in effect that he had made one mistake in 20 years.

Proceedings on sentence

43. The sentencing hearing took place on 1 May 2020 at Parramatta District Court.

44. The Crown tendered a bundle of documents (exhibit 1), which included a copy of the trial indictment, the applicant’s criminal history, victim impact statements from GH and CN, and a sentencing assessment report (“SAR”) of Kate Hodgson dated 17 April 2020. A further two pages of “case notes” from the NSW Department of Corrective Services were annexed to the SAR.

45. The SAR noted that the applicant disagreed with the police facts and maintained his innocence relating to all but two charges. He apportioned some blame on GH for her “flirtation” toward him, something that he suggested that he now believes “he misunderstood”. He continued to suggest that their behaviour and appearance made the victims appear older, justifying his decision-making that led to the offences. The author of the SAR reported that the applicant attempted to justify his conduct, had no insight and had only paid “lip service” to the harm that he had caused to the victims. The report also noted that the applicant was a low risk offender who would have supervision suspended when released into the community.

43. The case notes recorded a referral to a psychologist on 27 April 2020. On that day, the applicant was recorded as saying he disagreed with elements of the facts and denied that he ever touched the victims on the genital region. He attributed some of the blame onto the victims, reporting that the first victim flirted with him, that her behaviour and appearance made her seem older and that the second victim wanted attention from him. He suggested that he was a “tactile teacher” and had a “hands-on approach” that had been misunderstood. Despite his level of denial, he conceded that he had caused the victim’s distress, had a “lapse of judgment” and offered an apology.

44. The applicant relied on a report dated 10 April 2020 from Dr Olav Nielssen in addition to character references from three previous students of the applicant. These exhibits jointly formed exhibit 2 on sentence. The three former students all attested to the fact that the applicant had not touched them inappropriately and spoke of the applicant in favourable terms.

45. Dr Nielssen’s expert opinion was that the applicant did not meet the accepted criteria for the diagnosis of any kind of developmental disorder, acquired brain injury, psychotic illness, severe mood disorder or any other psychiatric order. He ruled out any diagnosis of paedophilia given the age of the victims. He suggested that these offences took place in the specific situation of his occupation as a tutor and that on clinical grounds the applicant was assessed as being unlikely to reoffend. Dr Nielssen noted:

“As a low risk offender with no history suggesting an abnormal sexual interest or impairment in impulse control Dr Pickard was not thought to require any specific counselling in order to reduce his probability of further offences. Moreover, he was not found to have any other psychiatric disorder for which he requires specific psychiatric or psychological treatment.”

49. The Crown prosecutor who appeared at trial and at the proceedings on sentence provided detailed written submissions addressing the fact finding process on sentence, the relevant sentencing principles, the determination of the objective seriousness and the application of the totality principle. The question of special circumstances was not addressed in those written submissions which predated the written submissions provided on behalf of the then offender.

50. In written submissions provided to the sentencing judge by the applicant’s then counsel, the following was submitted in relation to “special circumstances” within the meaning of s 44(2B) of the Sentencing Act:

“It is submitted that it is open to the Court to find special circumstances in the sentencing of the Offender. The Offender is a male in his 60s. This will be his first time in custody.

As this is the Offender’s first time in full-time custody may require a longer period of supervision to assist in his return to the community when released.

With the onset of the COVID 19 virus, the Offender being of advanced age he will experience a level of stress, anxiety and even a fear of potential fatal consequences were he to be infected in prison. (see RC v C; R v RC [2020] NSWCCA 76)”

51. The focus of the oral submissions at the proceedings on sentence was on the relevant discount in relation to the two counts to which the applicant entered a plea of guilty, the totality principle and questions of remorse. No oral submissions were made on the question of special circumstances.

Remarks on sentence

52. After setting out the facts, which I have already summarised above, the sentencing judge made findings as to the objective seriousness of each offence. Count 1 was found to be “below mid-range”; count 2 to be within the “bottom mid-range”; counts 3 and 4 to be “well within a broad mid-range”; counts 5, 6, and 7 to be “well within an identifiable mid-range”; counts 8, 10 and 12 to be in the “upper end of the mid-range”; counts 9, 11, 14, 15, 16 and 17 to be in the mid-range; and count 13 to be “above mid-range”.

53. In making those findings, his Honour observed the following:

“Each of the young victims was vulnerable. They were vulnerable not only because of the position of authority held by the offender in relation to each of them which is, of course, an element of the offence charged but as Higher School Certificate students, they were in my opinion, in a special position of heightened vulnerability. Their obvious reliance upon the tutoring of the offender and their respective demonstrated reluctance to discontinue his tutoring, particularly bearing in mind the stage of their education, rendered them peculiarly vulnerable to his incremental sexual advances.”

54. His Honour noted that both GH and CN had submitted victim impact statements. He noted that GH explained in her statement that she felt trapped and anxious and that she might fail the HSC without the applicant’s help, and that she felt the most scared she had ever felt. She described that in relation to the last offences (counts 11-13) she felt “really panicked” and that the applicant knew that she felt that she needed to continue seeing him throughout the rest of the year. CN similarly explained not wanting to sacrifice her marks improving during her HSC year. She also did not want to complain to her parents because they were making sacrifices to pay for her tutoring. His Honour observed:

“I refer to the impact of the offending upon the two victims. In my view, it does not do justice to the full explanation of both effect and attitude towards the future that each of these young ladies expressed in their victim impact statements to simply summarise them and, accordingly, I propose to incorporate them in full.”

55. His Honour then extracted both victim impact statements in full. His Honour recounted the applicant’s subjective features. He noted the oral testimony the applicant gave at the trial and the report of Dr Nielssen as well as the additional information contained in the SAR and the case notes.

56. The applicant grew up in Villawood and described the awakening he felt when he first read a book and was taken to see live theatre by a teacher. He commenced a Bachelor of Arts at the University of Sydney in 1972 but failed and left university. He undertook a theatre course and worked in the theatre and live music. He married a French woman in London in 1978 and lived in Paris for six years. He then returned to Australia and returned to university as a mature age student when he was 36 years old. He graduated with a degree in English literature with First Class Honours and subsequently did his PhD on hidden messages and symbolic codes in the work of Emily Dickinson. He commenced a relationship with his current partner when he was 41. They have been together now for over 25 years, and they have no children. The offender had no previous criminal charges or convictions besides one historical matter of high range PCA.

57. As for the question of remorse, his Honour concluded that the applicant has a continued belief in his own innocence; his fundamental position, maintained at trial and subsequently, is that he had a literal “hands on” and demonstrative physical manner of interacting with students he was teaching. His Honour noted the applicant’s suggestion in the material before him that he placed some blame on GH for what he claimed was her “flirtation towards him” and that her appearance had made her appear older. His Honour noted that in doing so, he seemingly justified his decision-making leading to the offences.

58. As for Dr Nielssen’s report, his Honour noted the account provided by the applicant that he was simply a tactile teacher and observed:

“To the extent that the offender appears to be advancing a justification for at least what he acknowledges, namely, an instance of touching on the breast, it is demonstrative in my view of not only a lack of remorse but a lack of proper insight into his position in relation to girls who happen to be above the age of legal consent but who are under his authority and to a considerable extent, in his thrall.

…

The offender’s continued belief in his innocence is no doubt buttressed by the circumstances that his partner, similarly, believes his innocence. She told Community Corrections that she thought the victims were a bit heavy-handed in going to the police.

Whilst his maintenance of protestations of innocence consistent with his pleas of not guilty do not serve to aggravate an appropriate sentence, his lack of remorse and proper insight denies the mitigating significance if such factors were indeed present.”

59. After setting out the indicative sentences in relation to the 17 counts, his Honour stated the following:

“I should indicate that as part of the instinctive synthesis, I have given careful consideration to the age of the offender, the fact that it is his first criminal offence, ignoring the historical PCA. I h ave also taken into account the current circumstances of incarceration in the present medical and social circumstances.

I do not, however, find that there are special circumstances.”

60. It is this last passage that forms the sole basis of complaint to this court.

The applicant’s submissions: Ground 2

61. It was submitted on behalf of the applicant that notwithstanding the fact that a finding of special circumstances is solely within the discretion of the sentencing judge, this court has looked with disapproval upon the failure of the sentencing judge to give reasons for declining a request for special circumstances. The decision in R v Novakovic [2004] NSWCCA 437 at [37]-[40] (considered below) was cited in support of this proposition. It was submitted that the findings of the court in that matter were directly applicable to the present case.

62. Complaint was made that the sentencing judge gave no explanation as to why the submissions advanced by counsel did not justify a finding of special circumstances. Nor was there any mention by the sentencing judge of the appropriateness or otherwise of special circumstances being applicable on the basis that the sentences had been accumulated. In support of that submission, the decision in Quayle v R [2010] NSWCCA 16 at [41] and [65] was relied upon by the applicant.

63. It was noted that the matters included in the written submissions before the sentencing judge included the fact that the applicant had no prior convictions, was a person of good character and will be serving a custodial sentence for the first time two months short of his 67^th birthday. He was unlikely to reoffend and had good prospects of rehabilitation. It was submitted that each of these matters could support a finding of special circumstances by itself. When taken together in combination with the additional factor of sentence accumulation, it was submitted that it was incumbent upon his Honour in exercising the discretion to provide reasons for refusing it.

64. In oral submissions at the hearing, the applicant’s argument shifted somewhat. It was initially submitted that it was an error of law for his Honour not to find special circumstances in this matter, but the real complaint emerged as being a complaint of inadequacy of reasons as to why his Honour declined to do so. As the hearing proceeded, it was submitted that should leave be required to amend ground 2 to reflect the complaint regarding inadequacy of reasons he sought leave to amend that ground. As stated above, he subsequently did so.

65. Reliance was placed on the decision in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 as authority for the proposition that the decision whether to vary the statutory ratio should not be looked at exclusively from the perspective of the desirability of a longer than usual period on parole.

66. Particular reliance was placed on the decisions in Novakovic v R; Mattar v R [2012] NSWCCA 98 and Quayle v R in which similar complaints were made as to the inadequacy of reasons as to why special circumstances were not found in those matters.

The respondent’s submissions

67. It was submitted on behalf of the Crown that the sentencing judge expressly considered whether a finding of special circumstances should be made by noting each of the matters that had been advanced by the applicant justifying such a finding. Those matters were the applicant’s age, his lack of significant criminal history, and the medical and social impacts of the COVID-19 pandemic.

68. It was noted that the applicant’s submission on appeal that the accumulation of sentences was another factor which required a finding of special circumstances, was not put to the sentencing judge and was misconceived given an aggregate sentence was imposed.

69. It was submitted that the authorities relied upon by the applicant do not assist as, in those decisions, the relevant sentencing judge had failed to explain how the relevant subjective features were taken into account. It was submitted that those cases are distinguishable, in particular, on the basis that in those cases the subjective features relevant to the question of special circumstances were overlooked.

70. At the hearing, it was submitted that to the extent that there was any perceived conflict between the decision of Spigelman CJ in R vSimpson and Quayle v R then the decision of R vSimpson should be preferred as it is a decision of five judges of this court.

71. As for the submission before the sentencing judge that the applicant would need a longer period on parole to adjust to society, it was submitted that it could not be sustained given the evidence that the applicant was a low risk offender who would not require any supervision.

Consideration

72. Section 44(2B) was inserted into the Sentencing Act following the enactment of s 53A of the Sentencing Act. It mirrors s 44(2) of that Act. As R A Hulme J recently observed in Le v R [2022] NSWCCA 243 at [18], the concept of “special circumstances” in that statutory context has been in the Sentencing Act and its predecessor since 1989. His Honour went on to observe the following in Le v R at [19]:

“There are abundant authorities pertaining to the determination of non-parole and parole periods of a sentence since this constraint of ‘special circumstances’ has been in force, principal among them being R v Moffitt (1990) 20 NSWLR 114; R v Hampton (1998) 44 NSWLR 729 at 731-2; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [18]-[73]; and R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [108]-[113].”

73. The decision of a sentencing judge whether or not to vary the statutory ratio under s 44(2) or, in the case of an aggregate sentence under s 44(2B) of the Sentencing Act, is a quintessentially discretionary one. An applicant seeking leave to appeal against a sentence on the basis of alleged error arising from such a decision must establish “House v R” error: House v The King (1936) 55 CLR 499; [1936] HCA 40. A proposed ground of appeal contending that the sentencing judge erred in not finding special circumstances without any identification of error in the process of reasoning amounts to a contention that the rejection of the submission was “unreasonable or plainly unjust”: see Haak v R [2022] NSWCCA 28 at [30]. It is insufficient to simply contend that the judge should have found special circumstances when he or she did not. As Spigelman CJ observed in R v Fido [2004] NSWCCA 172 at [22]:

“Simply because there is present in a case a circumstance which is capable of constituting a ‘special circumstance’ does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation.”

74. The process to be undertaken when a complaint is made concerning “special circumstances” was recently described in Martinez v R [2022] NSWCCA 12 by Beech-Jones CJ at CL (with whom Macfarlan and Brereton JJA agreed) in this way at [78]:

“In R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73], Spigelman CJ characterised the process of making a finding of special circumstances as being ‘first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence’. His Honour added that ‘there are well known restraints on an appellate court from interfering with decisions of this character’ and noted that ‘as a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive’. I take the former to be a reference to House v The King (1936) 55 CLR 499 (‘House’; see Bell v R [2019] NSWCCA 271 at [2]). I do not take the latter as holding that a challenge to a finding concerning special circumstances cannot be a basis in its own right for seeking leave to appeal against sentence. Such a proposition would be difficult to reconcile with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (‘Kentwell’).”

75. The decision in R v Simpson cited in the above decisions was decided over 20 years ago but remains one of the leading cases concerning “special circumstances”. A bench of five judges sat in R vSimpson: Spigelman CJ, Mason P, Grove and Sully JJ and Newman AJ. The primary question for determination was whether a finding of special circumstances must be based exclusively, or primarily, on the fact that it is desirable for an offender to be subjected to an extended period of supervision on parole. The court unanimously found that it did not. Spigelman CJ observed the following at [57] in that regard:

“The reasoning in Power indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way – requiring specific justification for a lower proportion but not for a higher proportion – Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of ‘special circumstances’ must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole.”

76. His Honour went on to observe the following at [65]:

“In addition to the need to identify and articulate ‘special circumstances’, in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender – including the objective gravity of the offence and the need for general deterrence – operates to confine the proper range for the exercise of the discretion”.

77. And at [67]:

“Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence.”

78. Thus, when considering whether special circumstances apply, the proper exercise of judicial discretion is constrained by the need to ensure that the non-parole period reflects, inter alia, the objective gravity of the offence and the need for general deterrence and that there is no “double counting”.

79. As for the requirement to provide reasons for declining to make a finding of special circumstances, one of the grounds of appeal in R vSimpson alleged an inadequacy of reasons for not making such a finding. The court in R vSimpson rejected that ground for the reasons provided by Spigelman CJ at [88]-[90] as follows:

“[88] In my opinion, in view of the wide range of considerations that are capable of constituting ‘special circumstances’, a failure to ‘explain’ why the statutory proportion was not varied will not readily be accepted as a basis for an inference that the sentencing judge did not turn his or her mind to the issue. It cannot do so where, as here, the sentencing judge makes the express reference that Judge Gibson made here:

‘I see no reason to find special circumstances in this case.’

[89] The Applicant submitted that this reference contained some form of ambiguity in that it was not clear whether his Honour was adopting a restrictive view of special circumstances by saying that none of the facts and matters he had referred to were capable, as a matter of law, of constituting special circumstances or, whether, on the other hand, his Honour accepted that the matters were capable of constituting special circumstances but found that, in the circumstances of the case, they were not sufficiently ‘special’ to conclude that the statutory relationship should be varied.

[90] Decisions on sentencing matters by District Court judges should not be analysed so finely. (See R v Majors (1991) 54 ACrimR 334 at 338.) The suggestion of ambiguity in the Applicant’s submissions is to manufacture an error in his Honour’s reasons which nothing in his Honour’s reasons warrants.”

80. The decision in R vSimpson stands as authority for the proposition that although it would be an error to overlook an argument that special circumstances should be found error will not be established if it is apparent from the reasons that the matter has not been overlooked.

81. As this court observed in Rizk v R [2020] NSWCCA 291 at [133], although s 44(2) and (2B) both require reasons to be given if a finding of special circumstances is made, there is no statutory requirement to give reasons for not making such a finding or for setting a non-parole period that is more than 75% of the total sentence. Despite this, it has been held that it is advisable for a sentencing judge to explain why a ratio in excess of 75% has been imposed so as to avoid an inference that the matter was not considered: see Calhoun (a pseudonym) v R [2018] NSWCCA 150 at [30] and GP v Regina [2017] NSWCCA 200 at [15].

82. In order for the applicant to succeed under this proposed ground, he must establish that the sentencing judge failed to consider the written submission (extracted at [50] above) regarding special circumstances. In support of this contention, significant reliance was placed on the decisions in Novakovic v R, Mattar v R and Quayle v R.

83. The relevant passages of the decision in Novakovic v R are at [37]-[39] where Sully J observed the following:

“[37] As to Ground 4, the learned sentencing Judge was, to say the least, to the point in dealing with the applicant’s submission to his Honour that ‘special circumstances’ should be found, and that a shorter than usual non-parole period should be set accordingly. His Honour said simply in his remarks on sentence: ‘I do not find special circumstances justifying the variation of the normal relationship between the head sentence and the non-parole period’.

[38] The applicant contends, and I agree, that there were matters, established by credible evidence, and capable of amounting to ‘special circumstances’. The applicant’s written submissions summarise those matters thus:

‘………… (T)he applicant was of prior good character, has never before been to prison, was contrite, is in his 50’s and has good prospects of rehabilitation.’

[39] The applicant complains, and in my opinion justifiably, that his Honour, if intending to make either a specific finding that there were no circumstances capable of amounting in law to special circumstances; or that there were such circumstances available in principle, but that his Honour was not prepared to find them in fact; was obliged to give some explanation, however brief, of why he was not going to make such a finding in fact.”

(Emphasis in original.)

84. The reasons of the sentencing judge in Novakovic v R can be distinguished from the present case; in that case the matters said to be capable of amounting to special circumstances were not referred to by the sentencing judge at all. That is not this case.

85. The second decision relied upon by the applicant was that of Mattar v R. That case was concerned with the imposition of a sentence for escaping lawful custody imposed to commence at the expiration of the non parole period of the sentence the applicant was then serving. The imposition of the sentence for the escape offence meant that the non parole period was 90% of the total head sentence. It was in that context that the applicant relied upon, inter alia, the decision in Novakovic v R. The relevant passages in Mattar v R relied upon by the applicant are those of Harrison J at [17]-[19] as follows:

“[17] The appellant submitted that this case was analogous to two cases to which the Court was referred. The first was Ngyuen v R [2008] NSWCCA 163 at [16] - [17] as follows:

‘Ground 3: His Honour erred in failing to find and/or give proper consideration to whether special circumstances were established

[16] In his Honour's reasons for sentence he said ‘I considered the question of special circumstances and I do not believe that they exist’. His Honour gave no explanation for so finding. For my part, on the evidence, I regard the finding that special circumstances do not exist as manifestly untenable. His Honour's finding is to be contrasted with a case when circumstances may have been capable of being accepted as special but where, in the discretion of the sentencing judge, no such finding should be made (see R v Phillips [2003] NSWCCA 373 at [16]). In those circumstances this Court may be reluctant to intervene.

[17] I am satisfied that the applicant's absence of any criminal antecedents, an established work history and, importantly, the fact that he did not come to fresh notice between the offence and trial, are such as should properly engender a real confidence in his ability to rebuild his life on release with the assistance of appropriate supervision and intervention. Importantly, in this case there can be no suggestion that those matters have been double-counted by reason of the fact that his Honour appears to have given no particular weight to rehabilitation although as I have found not in a way such as to constitute error (see R v Simpson (2001) 53 NSWLR 704 at [47]). I am satisfied that the statutory ratio can in this case be varied to result in the imposition of a non-parole period that appropriately reflects the criminality involved in the offence whilst providing for a longer parole period to facilitate this applicant's readjustment to community life upon his release.’

[18] The second was R v Novakovic [2004] NSWCCA 437. Sully J said this at [37]-[40]:

‘[37] As to Ground 4, the learned sentencing Judge was, to say the least, to the point in dealing with the applicant's submission to his Honour that ‘special circumstances’ should be found, and that a shorter than usual non-parole period should be set accordingly. His Honour said simply in his remarks on sentence: ‘I do not find special circumstances justifying the variation of the normal relationship between the head sentence and the non-parole period’.

[38] The applicant contends, and I agree, that there were matters, established by credible evidence, and capable of amounting to ‘special circumstances’. The applicant's written submissions summarise those matters thus:

‘... [T]he applicant was of prior good character, has never before been to prison, was contrite, is in his 50's and has good prospects of rehabilitation.’

[39] The applicant complains, and in my opinion justifiably, that his Honour, if intending to make either a specific finding that there were no circumstances capable of amounting in law to special circumstances; or that there were such circumstances available in principle, but that his Honour was not prepared to find them in fact; was obliged to give some explanation, however brief, of why he was not going to make such a finding in fact.

[40] In my opinion there is some proper scope for some modest reduction in an otherwise appropriate non-parole period by reason of the aforesaid special circumstances. To that extent I would uphold Ground 4.’

[19] In the present case, her Honour dealt with the question of special circumstances in these terms:

‘I note that the offender has been in custody solely on other matters since 28 May and his parole was revoked. I acknowledge that the Act requires me in imposing a sentence to accumulate the sentence I impose today on any non-parole period that Mr Mattar was currently serving. I am unable to make a finding of special circumstances for the reasons given.’”

(Emphasis added.)

86. Despite the statement by the sentencing judge that she had earlier given reasons for her decision, she had in fact omitted to do so (beyond stating that the “fairly lengthy non-parole periods should adequately cater for his rehabilitation"). The ground was thus established. As McCallum J (as her Honour then was) observed in her concurring judgment at [29], when the sentencing judge observed that the fairly lengthy non parole period should adequately cater for any rehabilitation, it is clear that she had overlooked the impact of the mandated accumulation of the sentence imposed.

87. The decision in Mattar v R was a very different case to the present case and does not assist the applicant. The judge in that case had stated that she had earlier provided reasons when she had not and, unlike this case, the overall ratio of the non-parole period to the head sentence was 90%.

88. The third case relied upon by the applicant was that of Quayle v R, in which the ground of appeal was similar to that in the present case. In Quayle v R, this court was satisfied that the sentencing judge had in fact found special circumstances (without expressly stating so) and made an adjustment in respect of one sentence so that the overall sentence conformed with the statutory ratio. It was in that context that R A Hulme J observed the following at [41]:

“It is difficult to say that a judge was in error for not doing something that he or she was not asked to do. A finding that there are, or are not, special circumstances is a discretionary finding of fact: see R v El-Hayek [2004] NSWCCA 25 per Howie J at [103]. In a case in which there are compelling circumstances for making such a finding, and the judge is in fact asked to do so, one might expect that if the judge declines to do so he or she would provide reasons: R v Novakovic [2004] NSWCCA 437 at [39] per Sully J. CfR v Simpson [2001] NSWCCA 534; 2001 53 NSWLR 704 Spigelman CJ at [86]-[88]. It is unnecessary to express a concluded view about this ground because of the conclusion I have reached in relation to the total sentences themselves.”

89. The decision in Quayle v R was relied upon by the applicant for its approval of the decision in Novakovic v R. But R A Hulme J did not find that decision to be authority for the proposition that there is an obligation on the sentencing judge to provide reasons when declining to make a finding of special circumstances. On the contrary, his Honour expressly stated that it was unnecessary to arrive at a concluded view regarding the potential conflict between Novakovic v R and R vSimpson on this question.

90. Having considered the authorities relied upon by the applicant, I am not satisfied that there is any express obligation for a sentencing judge to provide reasons declining to vary the statutory ratio in s 44 (2) or (2B) of the Sentencing Act. Clearly, if the question of special circumstances is raised before the sentencing judge, a failure to avert to that submission in the sentencing reasons may give rise to an inference that it has been overlooked, which, if established, could amount to House v The King error. But that is a different proposition to imposing an obligation on sentencing judges in every case to provide reasons when declining to find special circumstances (whether such a finding is sought or not).

91. I am not satisfied that the sentencing judge overlooked the submission regarding special circumstances in this matter; his Honour expressly referred to the matters that were put to him as being capable of constituting special circumstances. Rather than finding special circumstances and varying the statutory ratio, his Honour had regard to those matters as part of his instinctive synthesis. That approach is consistent with the decision in R vSimpson. In that respect his Honour went well beyond what occurred in Novakovic v R.

92. A separate complaint was made under this ground that the sentencing judge erred in declining to find special circumstances on the basis that his Honour was sentencing the applicant for multiple offences. There is authority for the proposition that the accumulation of a sentence upon a pre-existing sentence may constitute special circumstances allowing a sentencing judge to reduce the non-parole period of one or more of the offences to less than 75%: see GP v Regina and CM v R.

93. The difficulty with this aspect of the applicant’s argument is twofold. First, it was not raised before the sentencing judge. Secondly, the sentencing judge was not accumulating a sentence upon a pre-existing sentence in any event. When an aggregate sentence is imposed under s 53A of the Sentencing Act only one sentence is imposed. R A Hulme J observed as much in Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [78] as follows when considering a similar complaint:

“That rationale for finding special circumstances clearly does not apply when an aggregate sentence is imposed. There is only one sentence with one non-parole period. Nothing is accumulated. There is what is referred to as ‘notional accumulation’ of the indicative sentences, but they are not actually imposed. The justification for finding special circumstances in a multi-offence sentencing exercise described by Hunt CJ at CL is completely inapt.”

94. As R A Hulme J observed in JM v R [2014] NSWCCA 297 at [39](1), s 53A of the Sentencing Act was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 in sentencing for multiple offences. Imposing an aggregate sentence obviates the need to engage in the “laborious and sometimes complicated task of creating a "cascading or 'stairway' sentencing structure" when the principle of totality requires some accumulation of sentences”. That does not occur when an aggregate sentence is being imposed. This aspect of the complaint under this ground cannot be sustained either.

95. Finally, I note that the further amended ground of appeal (extracted above at [9]) contends that there is an “obligation” on a sentencing judge to provide reasons in the circumstances suggested within that ground. I am not satisfied that any such “obligation” exists in those terms. Basten JA considered a similar submission in Rizk concerning whether it is “incumbent” upon a sentencing judge to consider or avert to the potential effect of accumulated sentences. His Honour observed the following at [22]-[23] in response to the contention in that case that a “duty” existed to consider special circumstances in such a case:

“[22] No submission was put to this Court as to the proposed ‘duty to consider’. What has happened over some years is that the provision as to the statutory ratio, which cannot be diminished without a finding of special circumstances (the balance of term must not exceed one-third of the non-parole period) has been extended to apply to, not only the total sentence imposed by the sentencing judge, but, where that is accumulated on a previous sentence, the ratio of the new non-parole period to the combined effect of the sentences. What was originally described as a common practice became a good practice; then a matter which should be explained if no adjustment were to be made; and then an inference of reviewable error in circumstances where no reference was made to the effective ratio in the reasons for judgment.

[23] Statutory interventions over the years have made the task of sentencing offenders more complex and more time consuming. There are, undoubtedly, important principles of procedural fairness and transparency involved in many of the statutory requirements. However, in my view, appeal courts should be restrained in imposing additional obligations. Each additional ‘duty’ imposed by an appeal court, breach of which could affect the length or conditions of a sentence, will give rise to an obligation, in the case of a breach, to resentence by exercise of the appeal court’s independent discretion.”

96. These observations are apposite in the present matter.

97. I am not satisfied that error is established in the sentencing judge’s reasons for declining to find special circumstances in this matter.

ORDERS

98. Accordingly, I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

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Decision last updated: 08 February 2023