RH v R

Case •

[2019] NSWCCA 64

•

29 March 2019

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: RH v R [2019] NSWCCA 64
Hearing dates: 15 February 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Before: Hoeben CJ at CL at [1]
Schmidt J at [2]
Adamson J at [101]
Decision:

(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Multiple sexual offences against young daughter – Whether sentencing judge erred in assessment of objective seriousness — Whether consideration of aggravating factors resulted in double counting

 

CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — Whether loss of children as a result of offending is a form of extra-curial punishment

 

CRIME — Appeals — Appeal against sentence — Manifest excess

 

CRIME — Appeals — Appeal against sentence – Whether sentencing judge increased the aggregate sentence without reasons – Sentence perfected when entered on the indictment signed by the judge — District Court Rules 1973 (NSW), r 53.12 — Sentence not increased

  CRIME — Appeals — Appeal against sentence — misapplication of principle – Parity – No error
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 66C, 66EB
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
District Court Rules 1973 (NSW), r 53.12
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Dayment v R [2018] NSWCCA 132
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
GW v R [2018] NSWCCA 79
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lloyd v R [2017] NSWCCA 303
Markarian v The Queen (2008) 228 CLR 357; [2008] HCA 45
Miles v R [2017] NSWCCA 266
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
Ngati v R [2018] NSWCCA 32
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Perrin v R [2006] NSWCCA 64
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Wilhelm [2010] NSWSC 378
R v Wilkinson (No 5) [2009] NSWSC 432
SAT v R [2009] NSWCCA 172
SGJ v R; KU v R [2008] NSWCCA 258
Silvano v R [2008] NSWCCA 118; 184 A Crim R 593
Skocic v R [2014] NSWCCA 225
Tatana v R [2006] NSWCCA 398
Vandeventer v R [2013] NSWCCA 33
Wong v R (2001) 207 CLR 584; [2001] HCA 64
Category:Principal judgment
Parties: RH (Applicant)
Regina (Crown)
Representation:

Counsel:
N Carroll (Applicant)
P Leask (Crown)

  Solicitors:
Younes and Espiner Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2015/285010
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:
---
Date of Decision:
13 October 2017
Before:
Wass DCJ
File Number(s):
2015/285010

Judgment

  1. HOEBEN CJ at CL: I agree with Schmidt J and the order which she proposes.

  2. SCHMIDT J: The applicant was convicted at trial of five serious offences committed against her daughter, when she was aged between 10 and 13 years. Wass DCJ later sentenced her to an aggregate term of imprisonment of 16 years, with a non-parole period of 11 years for that offending. She now seeks leave to appeal that sentence. The offences were:

  1. Two counts of aggravated sexual assault of a person under the age of 16 years under s 61J(1) of the Crimes Act1900 (NSW), which attracted a maximum penalty of 20 years and a standard non-parole period of 10 years, for which the indicative sentences given were:

  1. 15 years with a non-parole period of 10 years – (count 1)

  2. 9 years with a non-parole period of 6 years – (count 2)

  1. Two counts of aggravated sexual assault of a person under the age of 16 years, under s 66C(2) of the Crimes Act, which attracted a maximum penalty of 20 years, for which indicative sentences given were:

  1. 9 years with a non-parole period of 6 years - (count 3)

  2. 12 years with a non-parole period of 8 years - (count 4)

  1. One count of procuring a child under the age of 14 for unlawful sexual activity under s 66EB(2) of the Crimes Act, which attracted a maximum penalty of 15 years, for which an indicative sentence of 9 years was given, with a non-parole period of 6 years – (count 5).

Grounds

  1. The grounds of appeal sought to be advanced are:

“1.   The applicant [RH] has been left with a justifiable sense of grievance where the co-offender [O]’s sentence fails to distinguish different criminal conduct between the two offenders.

2.   The sentencing judge erred in assessing that the objective criminality of the applicant [RH]'s offending as being either slightly less than or similar to the offender [O] conduct.

3.   The sentencing judge erred in considering the vulnerability of the complainant as an aggravating feature of the conduct where that vulnerability related to the child's age.

4.   The judge erred in not reducing the sentence on account of the extra-curial punishment for the loss of her children.

5.   The sentence was manifestly excessive

6.   The sentencing judge erred by increasing the aggregate sentence without reasons, after sentencing the offender.”

  1. It is convenient to commence with ground 2, because a parity ground accepts that the sentence imposed is otherwise correct: Tatana v R [2006] NSWCCA 398 at [15].

Ground 2 — objective criminality

  1. Assessment of the objective seriousness of an offence is a discretionary determination with which an appeal court is slow to intervene: Mulato v R [2006] NSWCCA 282 at [37].

The applicant’s case

  1. The applicant’s case was that Wass DCJ should have concluded that her offending was well below the mid-range of seriousness for assaults of the kind dealt with in counts 1 to 4, different and less serious as her offences were to those which O, her co-offender, had admitted committing. In written submissions it was argued that was because:

“a.   the applicant was present for the offending but was aiding the sexual perpetrator [O];

b.   the applicant at no stage carried out the acts of penetration or forced fellatio on her daughter [K];

c.   [O] was directing the behavior of both the applicant and her daughter;

d.   the applicant appears to have been reliant upon and subservient to [O], and her offending has arisen out of that corrupted relationship;

e.   the applicant had been fearful of being physically harmed by [O] and had witnessed [O]'s violent conduct in the home, both verbally and physically;

f.   the moral culpability of her conduct could have been reduced for the fact that the applicant's childhood was marked with a poor and neglectful relationship with her own mother, that never demonstrated nor established the proper bond and care between a mother and daughter.

g.   the applicant's moral culpability should have been reduced from her significant history of being victim to serious personal violent offences perpetrated against her by her first husband (father to her first 3 children), including rape by he and his friends;”

  1. As to count 5, the error in her Honour’s conclusion as to its objective seriousness, on the applicant’s case, was established by the fact that the indicative sentence given exceeded previous sentences imposed for such offending.

  2. I am satisfied that this ground cannot succeed.

The sentencing judgment

  1. The applicant gave evidence at her trial. Her Honour’s findings included:

  1. In 2007/2008 the applicant entered a relationship with O, with whom she lived with their children and those of the applicant’s previous relationship, including the victim K.

  2. By 2013 when K first complained to the applicant, O had been offending sexually against her for a number of years.

  3. Afterwards the applicant used her position of authority as K’s mother, not only to also offend against her, in order to assist O to further offend against K, but to counsel K to lie to DOCS and police, about their offending.

  4. Count 1, which was found to have fallen slightly above the mid-range of seriousness, occurred in 2014 when K was in year 6 at primary school. At 12.30am the applicant went into her bedroom and told her that O wanted her and that she should jump into bed with them. K refused and hid in a cupboard, but after she got out, O picked her up and took her into their bedroom, even though K resisted by grabbing the doorframe and positioning her hands and feet against it, in what her Honour described to have been a desperate attempt to dissuade him. Both O and the applicant forced K into their bedroom, prising her hands and feet from the door, where she was forced to lie on their bed face up, the applicant holding her down by her arms while kneeling on the bed, as O removed K’s pants, while she continued to resist and protest. O then sat on her thighs, before having vaginal/penile intercourse with K while the applicant held her down, even though she continued to object. O caused K pain while the applicant told her that “[i]t’s all going to be OK”.

  5. Later that night the applicant and O questioned K about having had prior sexual experiences with anyone else and whether she had commenced her periods.

  6. Count 2, which was found to have fallen slightly below the mid-range, occurred in late 2013 when K was 12, after she had begun menstruating. On that occasion the applicant began forcing K to go into the lounge with O, saying to K that she would do most of the work and that afterwards, K could raid the cupboards for food. By then K had given up her resistance, feeling that she had little choice. For some 10 minutes, K was forced to perform fellatio on O in the applicant’s presence. The applicant also performed fellatio on O in K’s presence. At one point O said “who’s going to take the cum?”

  7. Count 3, which was also found to have fallen below the mid-range, occurred in December 2014 at 11pm. It also involved K being forced to perform fellatio on O, in the applicant’s presence. The moral culpability of the applicant and O for this offence was found to be similar. Her Honour noted that, in O’s case, there was another matter taken into account on a Form 1 for this offence.

  8. Count 4, which was found to have fallen marginally below the mid-range, occurred in 2014 when O dragged K into the lounge room, late in the evening saying “just do what he wants so he leaves us alone for the rest of the night”. She dragged K to O, who forced K to perform fellatio, using what was found to have been an increased level of force, Using his hand on K’s head to push her head back when she attempted to move away from his penis, with the applicant saying “Just do it”. The applicant and K took turns to perform fellatio on O, who kept saying to K “keep going, you’ve got to do it like this” until he ejaculated into the applicant’s mouth and K walked away. O’s moral culpability for this offence was found to have been slightly higher than that of the applicant.

  9. Count 5 did not directly involve O. It was found to be an extremely serious example of this kind of offending. On a number of occasions in April or May 2015 the applicant persuaded, bargained, threatened, begged and cajoled K to submit to O. This was evidenced by text messages which the applicant claimed had an innocent explanation. Her Honour found that the overall context of these messages was that the applicant was putting pressure on K to provide O with 5, 10 or 15 minutes of time, so that he could have sexual activity with her. She also found that when at times K said she had her period, the applicant said “well you may have to do the other”, which was a reference to oral sex. At other times sexual intercourse was involved.

  10. The applicant also offered K rewards of things which any young person required for normal social interaction as they grew up, in return for time with O, such as jewellery and time with her friends. She also threatened K with loss of her phone, if she did not comply, thereby exploiting K time and time again, as the applicant sought to do O’s bidding against the interests of her young daughter. Her Honour also found that there had been use of coercion.

  11. The applicant also participated in giving alcohol to K in order to get her drunk. On one occasion, after the applicant initially refused, O punched a hole in the wall near where she was standing. The applicant’s evidence was that she then agreed, out of fear. O then gave K alcohol and sexually assaulted her, while K was too drunk to defend herself. Her Honour took this into account as providing context to the applicant’s evidence about being overborne by O, to the detriment of K.

  12. Further context was provided by evidence of the strict parenting regime which O imposed whereby the children, including K, were subject to physical violence and locked in their room to keep them from accessing food in the kitchen. Discipline was administered by O striking the children, including K, with a carbon fibre arrow.

  13. At the time of her offending the applicant was in breach of K’s trust as her biological mother and fulltime carer, taking advantage of the opportunity this afforded her, to offend against her daughter, while knowing how O was offending against her. The applicant allowed herself to respond to his control and threats of violence to herself by offending against K, preferring her own interests over those of her child. In the result, the applicant’s moral culpability for her offending was high.

  1. Her Honour identified the aggravating matters to be taken into account on sentence to be:

  1. the breach of trust involved in the applicant’s offending, apart from counts 2 and 3, where that was already an element of the offence;

  2. that all offences other than count 5 occurred in K’s home, where she was in a vulnerable situation and had a right to be off guard and to feel safe; and

  3. that the offences occurred in the family unit, other than in respect of counts 1 and 4, where K’s age was an element of the offence.

  1. Her Honour also took account of K’s vulnerability to the applicant’s offending, given that the applicant was unwilling or unable to protect K and allowed O to remain in the home where K was virtually helpless against the abuse perpetrated against her.

  2. Her Honour quoted from K’s victim impact statement and observed that there was no issue that K had suffered substantial harm. Her Honour concluded that the emotional harm K had suffered was significantly more deleterious to her than an ordinary person would have experienced, given the cruel and selfish nature of the applicant’s acts of violence towards her, in violation of the trust she placed in her mother.

  3. Her Honour referred to the applicant’s evidence about her subjective circumstances, but found that she had not expressed any remorse for her offending. Her Honour concluded that the applicant was not entitled to leniency notwithstanding that she had no prior record, given the nature of her offences and that the evidence established that she was a serial offender.

  4. As to her subjective circumstances, her Honour noted that:

  1. the applicant was aged 37 on sentence;

  2. of her 7 children the eldest was then aged 19 and the youngest 7 months, but that she had had no contact with them since arrest, apart from a brief conversation with her eldest child;

  3. she grew up in Forbes and had a difficult relationship with her mother and from her mid-teens, was regularly locked out of home;

  4. the applicant was socially withdrawn at school, which she left in year 11 to start work;

  5. she was married and pregnant by 18, having 3 children from that relationship and a further child as the result of rape. This relationship was violent and resulted in AVOs being taken out to protect the applicant and her children and in 2008 her husband was imprisoned for having seriously assaulted her; and

  6. O “rescued” the applicant from her husband’s violence and by 2008, they were living together in a reasonably stable relationship, but he had problems accepting her children and locked her son in his bedroom, almost all the time. The applicant’s excuse was that her son had an eating disorder where he was constantly eating. At least one of her children was found to have been malnourished.

  1. Her Honour noted that the psychologist who had examined the applicant had observed that she had no insight into, or empathy for, K’s emotional distress. Her own offending against K began after K had complained about O’s offending, when she had not believed what K had told her, but she told K not to reveal to DOCS what was happening to her. This continued even when police became involved, the applicant telling K to say that nothing had happened and attempting to manipulate K, for the benefit of O and herself.

  2. By 2014, on the applicant’s account, her relationship with O had significantly deteriorated. He hit the children, but not her. But he was threatening, controlling and abusive. Contrary to her stated intentions, she had had three children with him. The applicant also described always having viewed herself as hopeless, worthless and powerless.

  3. The applicant was assessed as suffering depressed mood. She described herself as having been depressed and anxious for her whole life, although she was not diagnosed to be suffering any mental illness. She did not abuse alcohol or drugs. Since 2016 she had pursued counselling for relationship issues, depression and past abuse, which had commenced in childhood.

  4. The applicant remained steadfast, however, in her denials of the matters for which she was being sentenced and had no insight to the hurt and damage she had caused K. Although she described herself as “disgusted” by what had happened, she said that she did not think about it. While she was worried about K, she described O’s controlling nature and her feelings of worthlessness, as having been causative.

  5. The psychologist also described the applicant as having served as a facilitator to procure and coerce K. She regarded herself as a victim and was highly dependent on others, particularly men, in the care of her children.

  6. Her Honour concluded that the applicant’s abusive relationships did not excuse, but might explain her conduct, her relationship with O having been one which involved emotional and financial abuse, threats of violence to her and known neglect, cruel conduct and violence to her children. Even so, the applicant was unwilling or unable to remove herself or her children from what was clearly an intolerable situation.

  7. Her Honour also noted that in custody the applicant had instigated another intimate relationship, which she described as a de facto relationship, and noted that the applicant had not provided her partner with information about her convictions. She also still continued to have contact with O.

  8. Her Honour found the applicant’s prospects of not offending further against her existing, or any children, to be poor, particularly if she did not fully engage with counselling.

  9. Her Honour accepted that in some respects, the applicant did what she thought she could, to improve an intolerable situation. Deprivation of food and the children’s liberty were not taken into account as matters increasing her sentence, but provided context, O having instigated this deprivation and used it to obtained compliance, when the applicant was too scared to do anything for her own wellbeing.

  10. Her Honour also noted that when O was not present, the applicant did what she could to improve living conditions in the house. She also took account of the applicant’s evidence that if she did not impose the strict conditions which O set, she would be verbally abused and threatened, or he would throw things at her.

  11. Her Honour also noted, however, that the applicant had admitted not resisting when O wanted to get K drunk, because she did not want to get hurt. Her Honour found that, she thereby put her interests above those of her daughter. Her Honour considered that the closest the applicant came to expressing remorse was when she said she felt guilt for having lost her children and admitting that in general, she was an unfit mother, but otherwise the applicant denied and sought to distance herself from the details of her offending.

  1. Her Honour also explained, in some further detail, the applicant’s changing and contradictory evidence about these matters, which it is unnecessary to recount.

  2. Her Honour’s conclusion that the applicant lacked remorse, also rested on the applicant’s evidence that she did not go to police, because she was “not a dog”. In the result, her Honour found that the applicant was prepared to put her children last and herself first and thus had extremely guarded prospects of rehabilitation, or of being unlikely to reoffend, given her intensely cruel conduct towards K, over an extended period of time. Her Honour also noted that as late as September 2017, the applicant had said that she had “nothing to rehabilitate from”, confirming that she continued to lack insight into the offending which she continued to deny.

  3. In the result, her Honour concluded that there was a need for general and specific deterrence to feature in the applicant’s sentence, given the need to protect the community from her protracted offending. Her grave and repeated sexual assaults involved a high degree of criminality, which she had pursued over a period of time. In the circumstances, the absence of additional violence in most of her offences was not found to have been a mitigating matter.

  4. Her Honour explained that the principle of totality had to be applied and that there should be a finding of special circumstances. Her Honour also took into account comparable cases, of which she observed there were few, referring to SGJ v R; KU v R [2008] NSWCCA 258 and SAT v R [2009] NSWCCA 172.

  5. Her Honour concluded that while a crushing sentence should not be imposed on the applicant, the applicant’s offences required a significant sentence.

There was no error in the comparable findings

  1. Given the reasons which Wass DCJ gave, there can be no question that her Honour bore in mind what the evidence revealed about O’s offences, in arriving at the conclusions which she reached, as to the objective seriousness of the applicant’s offences.

  2. In resolving what lies in issue on this ground, it must be borne in mind that while the applicant’s acts were different to those which O committed, on counts 1 to 4 she was being sentenced on the basis of joint criminal enterprise. That limited the difference in the conclusions which could be reached as to the objective seriousness of their respective offences, even though in each case their actual conduct also had to be taken into account. That is because of the common purpose which they had in pursuing these offences: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [166] and [213].

  3. Thus, the fact that it was O, rather than the applicant, who carried out various of the acts which were the subject of counts 1 to 4, could not significantly reduce the seriousness of the applicant’s offending, as her Honour concluded, given all that she actually did. Nor did the fact that the applicant was acting at O’s direction reduce the seriousness of the applicant’s offending, given not only what she did, but what was found on the evidence, about her motivation for so acting.

  4. Her Honour’s findings as to objective seriousness and the indicative sentences she gave for the offences for which the applicant and O were both sentenced were, in summary:

Offence

Applicant

Co-offender

Aggravated sexual intercourse without consent: s 61J

Count 1

Slightly above mid-range, co-offender's culpability slightly higher

15 years, NPP 10 years

Count 3

Above mid-range, slightly above applicant's culpability

13 1/2 years, NPP: 9 years Starting point 15.7 years

Aggravated sexual intercourse with child 10-14 years: s 66C(2)

Count 2

Slightly below mid-range, similar to co-offender

9 years, NPP 6 years

Count 4

Slightly below mid-range, similar to applicant

9 years, NPP: 6 years Starting point: 10.5 years

Aggravated sexual intercourse with child 10-14 years: s 66C(2)

Count 3

Below mid-range, similar to co-offender

9 years, NPP 6 years

Count 6 (Form 1 taken into account: s 61M(2), s 66C(2))

Below mid-range, similar to applicant

9 years, NPP: 6 years Starting point: 10.5 years

Aggravated sexual intercourse without consent: s 61J

Count 4

Marginally below mid-range, co-offender's culpability slightly higher

12 years, NPP 8 years

Count 7

Marginally below mid-range, slightly higher than applicant's culpability

1 VA years, NPP: VA years

Starting point: 13.5 years

  1. Her Honour’s reasons demonstrate that there was a proper basis for the conclusions which she reached about the objective gravity of each of the applicant’s serious offences against her child.

  2. Their objective seriousness had to be assessed by taking into account not only the conduct which actually constituted each offence, but also the surrounding circumstances which were directly related to the offence, both of aggravation and mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61]. Her Honour’s reasons demonstrate that she undertook this assessment.

  3. Given her Honour’s detailed findings on the evidence, including that which the applicant herself gave, it is not apparent that there was any error in the conclusions reached as to the objective seriousness of the applicant’s offending.

  4. The applicant argued that her offending on counts 1 to 4 was well below the mid-range. I do not regard such a conclusion as having been open. Her Honour’s conclusions that on counts 1 and 4 O’s offending was more serious than that of the applicant and on counts 2 and 3 the objective seriousness of their offences was similar was, however, open.

  5. Further, the fact that the sentence imposed on the applicant for count 5 exceeded previous sentences imposed for such offending, does not establish that her Honour’s conclusions as to the objective seriousness of this offence was not open.

  6. It is relevant that in the case of count 5, there was no standard non-parole period. That the sentence imposed on the applicant was, by reference to statistics, the highest imposed for this offence does not, of itself, demonstrate that it is unduly harsh. As a matter of logic, there must always be a sentence which is the highest: Skocic v R [2014] NSWCCA 225 at [19]. In the applicant’s case that consideration has additional force, because there was a total of only three such cases.

  7. K’s evidence, that she was able to resist the applicant on occasions, cannot establish that for which the applicant contended. To establish this offence it is only necessary, after all, to prove that the child was, or was to be, procured for unlawful sexual activity. It is not necessary to prove any particular unlawful sexual activity: s 66EB(4). It follows that K’s resistance to what the applicant did, could not reduce the seriousness of this offence, especially given that her conduct had to be considered in light of the surrounding circumstances, which her Honour explained.

  8. This ground cannot succeed.

Ground 3 — K’s vulnerability

  1. Section 21A(2) of the Crimes (Sentencing Procedure) Act1999 (NSW) specifies aggravating factors to be take into account on sentence. These examples are not exhaustive: Perrin v R [2006] NSWCCA 64 at [35]. In the applicant’s case they variously included:

“(b)    the offence involved the actual or threatened use of violence,

(cb)    the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(e)    the offence was committed in company,

(eb)   the offence was committed in the home of the victim or any other person,

(f)    the offence involved gratuitous cruelty,

(g)    the injury, emotional harm, loss or damage caused by the offence was substantial,

(k)     the offender abused a position of trust or authority in relation to the victim,

(l)   the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m)  the offence involved multiple victims or a series of criminal acts,”

  1. Her Honour’s judgment discloses that she was aware of the requirements of s 21A and careful to explain how she took account of the many aggravating matters which arose to be considered on the evidence. Her Honour identified those offences where it would be to double count, to take a particular factor into account, because it was already an element of the offence, making clear how she did and did not take particular matters into account, in arriving at the indicative sentence for each offence.

  2. What was advanced on this ground for the applicant, thus requires it to be accepted that her Honour did not do what she said she intended, in arriving at those sentences. Contrary to the case the applicant advanced, however, the indicative sentences given simply do not establish that her Honour wrongly took into account any aggravating factor, which was already an element of any offence.

  3. That an offence was committed in the home is an aggravating matter under s 21A(2)(eb) and that the offender abused a position of trust or authority, a separate aggravating matter under s 21A(2)(k). That a victim is under a person’s authority, however, is a different concept to an offence involving a breach of trust: MRW v R [2011] NSWCCA 260 at [77]. Those concepts are also both different to that encompassed by the circumstance that the offence was committed in the home.

  4. Even if these aggravating matters all arise to be considered out of the same evidence, an offence in the home, involving as it does a violation of the victim’s reasonable expectation of safety and security there, gives rise to different considerations to those involved when an offender abuses a position of trust or authority.

  5. When an offence is committed by a mother against her child in the home they share, these aggravating factors are all present, as is the aggravating factor that the child is vulnerable to the mother’s offending. Contrary to the applicant’s case, one does not encompass the other, the home being concerned with where the offence occurred; the offender’s position of trust or authority being concerned with what flows from his or her relationship with the victim, so far as the offender is concerned; and the vulnerability of a child to such offending by a mother, being concerned with what flows from the relationship, so far as the child is concerned.

  6. Taking into account a child’s vulnerability to offending by her mother, as her Honour did, thus did not result in double counting in those offences where K’s age or the applicant’s abuse of her position of authority or trust were elements of the offence, as was also submitted for the applicant. The concept of a child’s vulnerability to offending by her mother encompasses more than the child’s mere chronological age and the abuse of the mother’s position, which may continue even after a child ceases to be a minor.

  7. In the applicant’s case the evidence painfully established K’s dreadful vulnerability to her mother’s persistent, cruel offending, pursued as it was by the applicant as K grew and matured, in order to facilitate O’s continuing, violent and depraved behaviour towards K, the applicant all the while putting her own interests ahead of those of her child, including when she repeatedly urged K to lie to authorities, in order to conceal that offending, instead of obtaining help.

  8. This ground thus cannot succeed.

Ground 4 — extra-curial punishment

  1. The concept of “extra-curial punishment” involves loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for the offence, or at least by reason of the offender having committed the offence: Silvano v R [2008] NSWCCA 118; 184 A Crim R 593 at [29]. It is “punishment that is inflicted upon an offender otherwise than by a court of law”: R v Wilhelm [2010] NSWSC 378 per Howie J at [21].

  2. The submission advanced for the applicant both on sentence and appeal was that the removal of her underage children from her care and the imposition of a sentence which will necessarily remove her from their lives during much of their childhood amounted to extra-curial punishment. The applicant contended that her Honour erred in not taking that punishment into account in mitigation on sentence.

  3. Reliance was placed on the applicant’s evidence as follows:

“Q.    Of course, you understand that certainly until the children are 18 years of age you will probably never have any contact with them?

A.    I'm quite happy not to have the contact. I just want the updates. I'm not going to give my parental rights up to those children. I gave birth to them. As far as I'm concerned, they're mine. But I would never put them in a situation where their lives are disrupted. As long as I know they're safe and looked after and I get updates on how they're going at school and photos, I'm happy for the kids to be wherever they are, as long as they're happy.

Q.    How does it make you feel that you have loss[sic] your children, effectively?

A.    It kills me.”

  1. I am not satisfied that that these matters amount to extra-curial punishment.

  2. There was no authority which supported the conclusion that removal of children from an offender, as obviously dangerous to those children as the applicant was, in order to provide for their safety and care, involved any punishment for the offender. To conclude that it did, as was urged for the applicant, would be perverse.

  3. The removal of the applicant’s children from her care did not amount to extra-curial punishment. Rather, it was the natural consequence of her terrible offending against one of them and reflected society’s concern for the safety and ongoing care of her children.

  4. This ground has not been made out.

Ground 5 — manifest excess

  1. In order to establish manifest excess, some error of principle in the process or the result must be established: Markarian v The Queen (2005) 228 CLR 357; [2008] HCA 45 at [25].

  2. This ground was advanced on the basis that even though it was accepted that the applicant’s moral culpability for her offending was high, the sentences imposed were excessive, because the applicant did not inflict the assaults on K herself. Rather, she was present and sometimes assisting O, when he assaulted K.

  3. This raises similar difficulties to those raised by ground 2.

  4. Reliance was also placed on the applicant’s difficult subjective history, which included having had a neglectful mother and a history of domestic violence at the hands of her two partners and no prior criminal record. This, it was submitted, should have resulted in the conclusion that her moral culpability was lower than her Honour found. Reliance was also placed on the applicant’s evidence that:

“Q.    And at no time, in spite of what you told counsel about any threats of violence from [O] or any controlling behaviour of [O], at no time did you ever make him leave the premises?

A.    What, and get my head punched in? Yeah, smart move. I tried that with the ex-husband and I got assaulted. I'm not about to put myself in that same situation again.”

  1. Neither this evidence, nor the applicant’s personal circumstances, nor her conditions of custody lead to the conclusion for which the applicant contended that the sentence imposed upon her was manifestly excessive.

  2. The evidence which her Honour addressed provided a proper basis for the conclusions which she reached about both the indicative sentences and the aggregate sentence. Her Honour was entitled to conclude that the applicant took no responsibility for her offending and was not remorseful.

  3. The statistics relied on, which show that the sentence fell in the top 36% of offenders sentenced for similar offending, also do not establish manifest excess.

  4. It was also contended that the authorities which Wass DCJ had referred to were not comparable and that the following authorities showed that offenders who received aggregate sentences of 16 years or more, had committed more serious offending that that of the applicant, who had either only assisted, or been present when O committed his offences. They were:

CT [2017] NSWCCA15

Guilty Verdict

12 y NPP 7 y

7 offences of indecent assaults and sexual intercourse with child, committed against his stepdaughter over 5 years when she was between 6 and 10 years of age. Counts 1 to 6 were representative charges of wider conduct.

AGF [2016] NSWCCA 236

Guilty Verdict

15 y NPP 10 y

10 offences against his niece over 7 years between the ages of 12-18. He was her carer since she was 9 years old as her father had died and her mother was not mentally fit to look after her. The sentence on appeal was reduced for later assistance to 13.5 years NPP 9 years.

PB [2016] NSWCCA 258

Pleas

of

Guilty

14 y NPP 8 y

A stepfather sexually abused two step daughters aged 10 years and 15 year of age over 4 months. Indecent assault and sexual intercourse. Threats made to one victim. Offender was aware one daughter had been abused by her biological father.

Feuerstein [2015] NSWCCA 82

Guilty Verdict

16 y NPP 11 y

Offences over 20 year period (1990-2011). 7 complainants aged 10 to 16 years old. The offender would befriend, give gifts, then drug them or get them heavily drunk and sexually abuse or indecently assault the boys in his home. 61 J, 61M and 66C(2) offences. Successful crown appeal.

TDP [2013] NSWCCA 303

Guilty Verdict

10.5 y NPP 7.5 y

Offending occurred over 3.5 years when the offender's stepdaughter was 13 to 16 years old. Section 61M (x2) and 61J (x9) offences the aggravating feature being under the authority of the offender.

TWP [2006] NSWCCA 141

Pleas

of

Guilty

16 y NPP 12 y

17 offences against the offenders 3 daughters of assault, sexual assault and incest over a period of 16 years in the family home whilst the girls were home schooled. The Crown appeal was successful on inadequacy.

RJP [2006] NSWCCA 149

Pleas

of

guilty

12 y NPP 8 y

The offender sexually assaulted his sister and cousin a number of times, when they were between the ages of 6 - 12 years. He was about 15 when it first occurred.

  1. The difficulty with these comparisons is that manifest excess is not established simply by comparison to sentences imposed in other cases, which are markedly different.

  2. To warrant intervention, misapplication of principle must be established: Ngati v R [2018] NSWCCA 32 at [34]. There will always be cases where other offenders appear to have been dealt with more leniently: Vandeventer v R [2013] NSWCCA 33. What must be achieved is consistency in application of relevant principle, not numerical or mathematical equivalence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [18].

  3. Furthermore, there are many cases involving repeated sexual abuse of children by family members and little utility in comparing the circumstances in which that has occurred: GW v R [2018] NSWCCA 79 at [41]–[42].

  4. There is thus no point in here identifying all of the relevant differences in the circumstances which arose for consideration in the cases the applicant relied on, but they included that:

  • CT involved offences committed in the 1980s and the offender was thus sentenced in according with the sentence practices which then prevailed;

  • in Feuerstein the sentence was found to have been lenient and in PB unduly lenient;

  • the appeal in TDP was dismissed, there having been a delay in the Crown appeal;

  • in PB and TWP the most serious offences carried maximum penalties of only 10 years’ imprisonment; and

  • in some cases discounts were given after pleas, and in some cases for both pleas and assistance - of up to 40% in SAT and 33% in TWP.

  1. While her Honour imposed, as she intended, a significant sentence, she said that she was mindful of needing to impose one which was not crushing. Whether a sentence is crushing must be assessed in light of all that the offender is being sentenced for. To give effect to her Honour’s intention, there was but limited accumulation of the indicative sentences, in the aggregate sentence imposed. That the result of her Honour’s approach was a manifestly excessive sentence was thus simply not established.

  1. It is also relevant to consider that two of the applicant’s offences attracted a maximum penalty of 20 years and a non-parole period of 10, two attracted maximum penalties of 20, and the last, a maximum penalty of 15; the indicative sentence given for the most serious offence, count 1, alone was 15 years with a non-parole period of 10 years and yet the aggregate sentence was 16 years, with a non-parole period of only 11.

  2. Given the seriousness of all of what the applicant was being sentenced for, that was a lenient outcome. As discussed in in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64], it must be remembered that:

“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.” [footnotes omitted]

  1. Had the aggregate sentence imposed upon the applicant been even less, as she contended it should have been, it would be open to challenge on the basis that it was manifestly inadequate, not adequately reflecting the total criminality of all of the offending for which she had to be sentenced.

Ground 6 — increasing the aggregate sentence without reasons

  1. The applicant also contended that when she was sentenced, after having first imposed an aggregate sentence of 13 and a half years imprisonment with a non-parole period of 9 years, following a brief discussion with the parties and a short adjournment, the aggregate sentence was increased to 16 years with a non-parole period of 11 years, without reasons being given.

  2. As the applicant acknowledged, a sentence is only perfected when entered on the indictment signed by the judge: Rule 53.12, District Court Rules 1973 (NSW). That had not occurred before her Honour revised the sentence and so it was conceded that, technically, it was open to her Honour to increase the sentence. It was contended, however, that the reason her Honour gave for revisiting the sentence was that there had been an error in the dates pronounced for the indicative sentences. But the sentence finally imposed altered both the dates of the indicative sentences and the length of the aggregate sentence, contrary to what the instinctive synthesis which Wass DCJ was required to undertake, before passing a single sentence had required: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [75].

  3. The result of her Honour’s approach was thus argued to have been that there was no explanation given for why the aggregate sentence of 13 and a half years was wrong, nor did her Honour say she that she had intended to impose a longer sentence.

  4. What was advanced on this ground simply has no basis in what occurred when sentence was imposed. That was:

“HER HONOUR: …

The offender has spent one year and 274 days in custody already, accordingly any sentence will commence from 12 January 2016. I propose, as I have said, to impose an aggregate sentence.

In respect of count 1, I indicate a non-parole period of ten years with an additional term of five years.

In respect of count 2, I indicate a non-parole period of six years with an additional term of three years.

In respect of count 3, I indicate a non-parole period of six years with an additional term of three years.

In respect of count 4, I indicate a non-parole period of eight years with an additional term of four years.

In respect of count 5, I indicate a non-parole period of six years with an additional term of three years.

[RH], please stand up. Can you still see me while you are standing?

OFFENDER: Yes.

HER HONOUR: Yes.

OFFENDER: Yes.

HER HONOUR: You are convicted on each count. You are sentenced to a non-parole period of nine years commencing on 12 January 2016 with an additional term of four and a half years expiring on 28 January 2038, that is a total sentence of 13 and a half years imprisonment. You are eligible for release to parole on 11 January 2025. Take a seat please.

HER HONOUR: Does anyone need those numbers again?

MCSPEDDEN: Yes, please, your Honour.

HER HONOUR: I know I appreciate I went through the indicative sentences quite quickly.

MCSPEDDEN: No, the expiration of the non-parole period your Honour.

HER HONOUR: 11 January 2025.

MCSPEDDEN: Thank you, your Honour.

VASSILIOU: Would your Honour make a recommendation that [RH] receive counselling and treatment?

HER HONOUR: Yes, absolutely. And I expect that my remarks will go to those who care for her in custody.

I make a specific recommendation that she receive counselling as soon as possible.

VASSILIOU: And can a copy of Ms Robilliard's report be forwarded to Corrective Services?

HER HONOUR: And that be forwarded immediately.

VASSILIOU: Thank you, your Honour.

HER HONOUR: That is the psychological report, yes, it will be.

MCSPEDDEN: Your Honour, I just have concern that your Honour has expressed a ten year non-parole period in respect of count 1 yet on the aggregate count a nine year non-parole period.

HER HONOUR: Yes, that is wrong, that is wrong. I have done something wrong, you're absolutely right. Just excuse me for a moment I am going to need to go off the bench because I need to check what I have done. There is a typographical error in my notes, I am sorry to do that to everybody.

SHORT ADJOURNMENT

HER HONOUR: My apologies to everyone, those dates were entirely out and wrong so I am sorry they were just all completely not what they should have been. I will start again with the indicative sentences.

In respect of count 1, I indicate a non-parole period of ten years with an additional term of five years.

In respect of count 2, I indicate a non-parole period of six years with an additional term of three years.

In respect of count 3, I indicate a non-parole period of six years with an additional term of three years.

In respect of count 4, I indicate a non-parole period of eight years with an additional term of four years.

In respect of count 5, I indicate a non-parole period of six years with an additional term of three years.

I am sorry to do this to you, [RH], but I am going to have to go through this process again, would you mind standing up please.

You are convicted on each count. You are sentenced to a non-parole period of 11 years commencing on 12 January 2016 with an additional term of five years expiring on 11 January 2032. The total sentence of 16 years imprisonment. You are eligible for release to parole on 11 January 2027.

Take a seat please.

HER HONOUR: Ms Crown, have I now at least got the mathematics and the dates right?

MCSPEDDEN: Yes, your Honour, thank you.

HER HONOUR: It occurred to me that the expiry date was completely wrong as well for some reason I had it years ahead of where it should have been. I will just make that clear now.

It is a total sentence of 16 years to commence from 20 January 2016, the non-parole period of 11 years, and eligibility for release to parole on 11 January 2027.

MCSPEDDEN: Please the Court.

HER HONOUR: I will make those orders in respect of psychological counselling and have the report forwarded immediately to those at Corrective Services.

Are there any further matters that I need to deal with?

VASSILIOU: No, your Honour.

MCSPEDDEN: Is the date from 12 January 2016, your Honour.

HER HONOUR: Yes, expiring on 11 January 2027 - the release to parole date and 11 January 2032 for the entire sentence.

MCSPEDDEN : Thank you, your Honour.

HER HONOUR: I am terribly sorry, there's nothing worse than doing what I just did and I apologise for that.”

  1. As the Crown raised and her Honour immediately appreciated, an aggregate sentence of 13 and a half years commencing 12 January 2016 could not conclude on 28 January 2038, that being a period of over 22 years. Further, the non-parole periods her Honour had given in the indicative sentences had totalled 26 years, with that given for count 1 alone being 10 years and yet the aggregate non-parole period was 9 years and the indicative sentences totalled 33 years, but the total aggregate sentence was only 13 and a half years.

  2. Having realised that she had made an error, her Honour explained that she had identified that there were errors in her notes, adjourned and when she returned, gave the same indicative sentences, but imposed an aggregate sentence of 16 years, with a non-parole period of 11 years and an additional term of 5 years, with the correct dates. The parties raising nothing further, that was the sentence imposed on the applicant.

  3. What occurred thus did not involve any erroneous increase in the applicant’s sentence. The sentence first announced could not have validly been imposed upon her, incorrect as both her Honour and the parties themselves immediately appreciated it was. Her Honour’s recognition and correction of her errors, before the sentence was perfected, for reasons which she properly explained, thus did not involve any invalid increase in the applicant’s sentence.

  4. This ground thus also cannot succeed.

Ground 1 — parity

  1. The aggregate sentence imposed on the applicant for her five serious offences of 16 years, with a non-parole period of 11 years, involved a lenient application of the principle of totality, as I have explained, given the indicative sentences given. By comparison, an aggregate sentence of 21 years with a non-parole period of 14 years was imposed upon O, after the following indicative sentences were given, he having received a 25% discount for his plea:

Count

Offence

Maximum

SNPP

Indicative sentence

1

Aggravated sexual intercourse without consent (1.9.11 -31.12.13): s61J

Form 1: s66C(2)

20 years

10 years

10 years NPP: 6 years, 6 months

2

Aggravated sexual intercourse with child 10-14years(1.1.12-31.12.13): s66C(2)

Form 1: s66C(2)

20 years

n/a

9 years NPP: 6 years

3

(count 1 for RH)

Aggravated sexual intercourse without consent (1.1.13-31.12.13): s61J

20 years

10 years

13 years, 6 months NPP: 9 years

Starting point: 15.7 years

4

(count 2 for RH)

Aggravated sexual intercourse with child 10-14 years (1.9.13-1.11.13): s66C(2)

20 years

n/a

9 years NPP: 6 years

Starting point: 10.5 years

5

Aggravated sexual intercourse with child 10- 14years (1.10.13 - 31.10.13): s66C(2)

Form 1: s66C(2)

20 years

n/a

10 years NPP: 6 years, 6 months

6

(count 3 for RH)

Aggravated sexual intercourse with child 10-14 years (1.6.14-31.12.14): s66C(2)

Form 1: s61M(2), s66C(2)

20 years

n/a

9 years NPP: 6 years

Starting point: 10.5 years

7

(count 4 for RH)

Aggravated sexual intercourse without consent (1.11.14-31.12.14): s61J

20 years

n/a

11 years, 6 months NPP: 7 years, 6 months

Starting point: 13.5 years

8

Aggravated sexual intercourse with child 10-14 years(1.1.15-31.12.15): s66C(2)

Form 1: s66C(2)

20 years

n/a

13 years NPP: 8 years, 6 months

  1. Counts 3, 4, 5 and 6 were the offences for which both the applicant and O were sentenced.

  2. While formal identity of charges against offenders whose sentences are being compared is not a necessary condition of the application of the principle of parity, there are practical difficulties in drawing comparisons where co-offenders have been sentenced for different offences, as was the situation of the applicant and O: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]. The applicant’s sense of grievance on which this ground depends, must be assessed by objective criteria: at [31].

  3. It is thus relevant that in sentencing O, six additional offences were taken into account on a Form 1, which had to have the effect of increasing the sentences for the offences on which they were taken into account: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]. This being so, it is apparent that her Honour’s approach to O’s sentence also involved considerable leniency.

  4. The table at [34] shows the differences in the indicative sentences which her Honour gave the two offenders for the four offences they both committed and the conclusions which she reached as to the objective seriousness of their respective offending and their moral culpability. This table confirms that her Honour’s conclusions were also favourable to the applicant, given that she was not entitled to any discount on sentence, having been convicted of her offences after trial.

  5. Parity must also be determined by having regard not only to the offences for which sentence was imposed on the co-offenders, but also to their respective circumstances and degrees of culpability. In the result, “like must be compared with like” and relevant differences may “justify a real difference in the time each will serve in prison”: Postiglione v The Queen (1997) 189 CLR 295 at 878; [1997] HCA 26.

  6. There were other differences between the offenders which her Honour thus also had to take into account in arriving at the sentences imposed on the applicant, apart from the entry of O’s pleas and the Form 1 offences which had to be taken into account in his case.

  7. They included the remorse O had expressed in his evidence on sentence; his different subjective circumstances, which included that his cognitive ability was below average, his last year of schooling being year 4 and he being illiterate; that he was pursuing education and drug and alcohol counselling in custody; that he had the support of family and friends; that he was found to have some prospects of rehabilitation; and that the applicant was found not to have expressed any remorse and was found, by comparison, to have extremely guarded prospects of rehabilitation.

  8. The result of her Honour’s approach was that O’s total sentence is 5 years longer than that imposed on the applicant and his non-parole period 3 years longer, despite the discount he received for his plea.

  9. That being so, it is not possible to see a basis for the conclusion that the applicant has a justifiable sense of grievance as the result of her Honour’s wrong application of the parity principle when determining her sentence.

  10. There are limits upon differentiation between the relative culpability of co-offenders, by reference to their respective conduct in the joint criminal enterprise in which they have engaged: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49. The parity principle applies when discrepancy in offenders’ sentences is not reasonably explained by the degree of difference between the co-offenders and their offending: Miles v R [2017] NSWCCA 266 at [40]. That this does not explain the differences in the sentences imposed on the applicant and O, was not established.

  11. It is not for this Court simply to second guess how Wass DCJ differentiated between these co-offenders, that involving as it did a discretionary exercise. Intervention is only warranted where the degree of disparity is not justified as a proper exercise of the discretion: Dayment v R [2018] NSWCCA 132 at [62].

  12. Her Honour’s application of the principles of totality and parity was favourable to the applicant and amounted to a proper exercise of discretion: Lloyd v R [2017] NSWCCA 303 at [96].

  13. Even had a basis for a justifiable sense of grievance been established, the Court’s discretion to reduce the applicant’s sentence to a less than adequate level, would not require it to reduce the sentence to a level which would be “an affront to the proper administration of justice”: Green v The Queen at [33].

  14. In my view that would be the result if the applicant’s sentence were further reduced.

  15. The sentence imposed on O was also lenient, as I have explained, given the nature and seriousness of his offending. His sentence has already had a favourable impact on the applicant’s sentence. To now even further reduce her sentence, would result in a non-parole period, that being the minimum term of imprisonment which justice requires an offender serve for his or her offences, which would not reflect what all of the elements of punishment require in the applicant’s case, given the evidence which her Honour discussed in detail in her judgment: Power v The Queen (1974) 131 CLR 623 at 628–629; [1974] HCA 26.

  16. Accordingly, this ground must also fail.

Orders

  1. For these reasons, I would order that:

  1. Leave to appeal is granted.

  2. The appeal is dismissed.

  1. ADAMSON J: I agree with the orders proposed by Schmidt J, substantially for the reasons given by her Honour.

**********

Amendments

08 April 2019 - typographical errors in [2] and [78]

Decision last updated: 08 April 2019

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Cases Citing This Decision

9

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