Shayne Hammond v Regina

[2015] NSWCCA 89

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Shayne Hammond v Regina [2015] NSWCCA 89
Hearing dates:	24 March 2015
Date of orders:	12 May 2015
Decision date:	12 May 2015
Before:	Hoeben CJ at CL at [1] Adams J at [5] McCallum J at [33]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – aggravated sexual assault – whether error in assessment of objective seriousness and leniency
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
Cases Cited:	Mulato v R [2006] NSWCCA 282 Ryan v R (2001) 206 CLR 267; [2001] HCA 21 Weininger v R (2003) 212 CLR 629 [2003] HCA 14 Kentwell v The Queen [2014] HCA 37
Category:	Principal judgment
Parties:	Shayne Hammond (Applicant) The Queen (Respondent)
Representation:	Counsel: Mr D. Barrow (Applicant) Mr K. Alder (Respondent) Solicitors: Legal Aid of NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/96884; 2012/139927
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 13 December 2012 Before: McLoughlin DCJ File Number(s): 2012/96884; 2012/139927

Judgment

1. HOEBEN CJ at CL: I agree with the careful analysis of the facts by Adams J in his judgment and I also agree with his Honour’s finding that the primary judge erred in the respects which Adams J has identified.

2. Regrettably, I differ from Adams J in the result which he has come to. Because error has been identified, it is necessary for me to independently exercise my discretion pursuant to s6(3) of the Criminal Appeal Act 1912 (NSW) as to whether another and in this case a lesser sentence is warranted in law.

3. The approach to be followed by this Court in such circumstances is set out in Kentwell v The Queen [2014] HCA 37 where the plurality (French CJ, Hayne, Bell and Keane JJ) said:

“42   … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …

43   After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. …”

4. On the facts of this case in the exercise of my discretion, I am not satisfied that a lesser sentence is warranted in law. Accordingly, the orders which I propose are that leave to appeal against sentence be granted but that the appeal be dismissed.

5. ADAMS J:

Introduction

6. On 13 December 2012 the applicant was sentenced on two counts of sexual intercourse without consent in circumstances of aggravation, namely that the victim was under the age of sixteen years, contrary to s 61J of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment and the standard non-parole period of 10 years. After allowing a 25% discount for his early pleas of guilty, the applicant was sentenced, on each count, to concurrent terms of imprisonment of 6 years with non-parole periods of 3 years commencing 7 December 2012. It follows that the commencing point for these sentences was 8 years imprisonment. The applicant seeks leave to appeal against his sentences upon two grounds –

Ground 1: His Honour erred in the assessment of the objective seriousness of the offending.

Ground 2: His Honour erred in only extending limited leniency in consequence of the applicant’s absence of a criminal record and his prior good character.

Facts

7. The following account is largely taken from a Statement of Agreed Facts which was adopted by the sentencing Judge and summarised in his reasons for sentence. On the evening of 27 December 2011 the victim, aged 15 years, and two female friends went by taxi to a camping and swimming area about 20km from Cowra. They met three teenage boys whom they knew. Also present was the applicant, then aged 26, who was the older brother of one of the boys. The victim did not know the applicant but recognised him from having previously seen him around town. Some of the males had taken casks of wine to the beach. The victim, who was drunk when she arrived, continued to drink. She did not see the applicant drinking alcohol at any stage. About an hour after they arrived, the victim’s two female companions were collected by family members and driven home. The victim and the four males sat around a camp fire on the beach near the water, at one stage the victim going for a swim. After some time, the victim and one of the teenage males began to hug and kiss but the victim began to feel sick and dizzy and moved to the tent to lie down. Her vision was blurry and she tripped over things. She lay on her stomach inside the tent. The applicant approached and said to her words to the effect, “If you pass out I’ll have to kiss you”. The victim said, “I’m not going to pass out”, got out of the tent and returned to the campfire. Still feeling sick, she crawled away and vomited into the sand. Sometime later the applicant said to the victim, “If you and [N] have sex we have to watch”. She replied, “Get lost” and made her way back to the tent and lay down, feeling very dizzy. The applicant again approached the tent and said, “I’m going to have to kiss you”. The victim said she missed her mum and wanted to go home. The applicant said he would take her home. He helped her from the tent to his vehicle, supporting her weight as he helped her enter, the victim having her arm around his neck. She fell in and out of sleep. She recalled arriving at a house which was not hers and believed was the applicant’s. The applicant stopped the vehicle and helped the victim to alight by taking her arm, putting it around his neck and supporting her weight as she walked. The victim did not understand what was happening and asked, “Am I going home?” She was highly intoxicated.

8. The applicant placed the victim on a bed in a dark room and told her she needed to sober up or else her mother would get really angry. He removed all her wet clothing, including underpants and brassiere. The victim was very drowsy and did not say anything. The applicant left the room and placed the clothes in a dryer. The victim rolled herself up in a blanket, a short time later, beginning to feel sick and needing to vomit. The applicant took her to a bathroom and held her hair back as she vomited into the toilet. She then returned to the room and lay on the bed.

Count 1:

9. The applicant returned to the bedroom and rolled the victim, who had passed out, onto her back. He tried to kiss her. The victim said that she wanted to sleep, the applicant said she could “in a second”. He then inserted his fingers into her vagina, pushing them in and out causing some pain. She told him to stop and said, “Get…away from me”. The applicant asked, “Do you like it?” She replied, “No”. The applicant nevertheless repeated his action, using his thumb very roughly and painfully.

Count 2:

10. The applicant got on top of the victim, put his penis into her vagina and one hand on her left breast. The victim unsuccessfully tried to push him away. She said that this “hurt really bad” and yelled at the applicant to get off her. He asked, “Don’t you like this?” Again, she said, “No”. The applicant then pushed his penis into her vagina, causing more pain. The victim said he was really rough. She began to cry. The applicant said he knew he had a big penis. After some time he stopped and got off the victim, who was unsure whether he had ejaculated or not. He retrieved the victim’s clothes from the dryer.

11. The victim dressed and the applicant walked her to his vehicle. She told him to drive her to the end of her street. She was crying and the applicant asked what was wrong. She did not reply. The applicant dropped her at the end of her street and said words to the effect, “Don’t tell anyone. It will be our secret”. The victim ran home and went straight to bed. A short time later, in the early hours of 28 December 2011, she was woken by a friend and her mother and told them briefly what had happened. Police were informed and she was taken to hospital and examined by a doctor. There were two fresh tears in the vagina measuring 1.5 and 3cm and very tender to touch. There was also tenderness to the muscles of the upper inner thighs.

12. On 5 January 2012 the victim was interviewed by Police who, on 8 March 2012 attended the work address of the applicant and arrested him. He admitted meeting the victim at the beach and giving her a lift home, knowing that she was 15 years of age. He said she was very intoxicated and stumbling. He denied taking her anywhere but to her home, in particular that she came to his house. He denied sexual intercourse or any sexual connection with her. A buccal swab was collected and he was released without charge pending the results of the DNA testing. On 26 March 2012 Police were informed that DNA recovered from the high vaginal swab taken from the victim had the same profile as the applicant’s DNA. On the following day he was again arrested. He declined to be interviewed.

13. So far as the objective circumstances are concerned, the sentencing judge said –

These crimes are unfortunately prevalent and very serious and youth must be protected from predatory persons and themselves, when they put themselves into dangerous situations. This protection must be to the maximum. The offender, by his conduct at the campsite, indicated in my view, predatory behaviour and embarked upon a journey knowing what his intentions were. On the objective side, I regard these offences as being above the middle of any scale constructed for such offences and must result in a prison sentence.

Subjective features

14. The applicant had no criminal record. Ms Young, a specialist psychologist with the Community Offenders Service took a history, which was in a report tendered to the Court. Briefly, the applicant had grown up with his mother and four younger siblings, having had no contact with his father since he was sixteen. He said he is close to most of the family except his father. He completed High School, at the end of year 10, during which time he had been suspended three times. He had a number of jobs but was unemployed since March 2012. He was married but that relationship ceased. The applicant had a daughter from a brief relationship when he was 19. She was six years of age in 2012 but the applicant had no contact with her although he paid child support, the girl’s mother not wanting him to have contact. He had another relationship which ended in October 2011. The separation came as a major surprise and the applicant was suicidal for a period and very depressed. Ms Young confirmed this history in a telephone conversation with the clinical psychologist he had consulted. An Apprehended Domestic Violence Order was made in March 2012 in relation to his wife because of his continuing attempts to contact her. The applicant reported that he did not use drugs and, though he drank to excess while he was younger, now only has one or two drinks socially.

15. It seems clear that the applicant had suffered quite a serious depressive illness following his separation and was placed on anti-depressant medication which he was taking at the time of the offence and, indeed, up to the time he was interviewed by Ms Young.

16. So far as the Risk Assessment was concerned Ms Young said that he fell into “the moderate low risk category for sexual reoffending and, should he continue to manage his emotional state and not place himself into situations where he is around teenage girls in vulnerable situations, then this risk will be reduced”.

17. The applicant gave evidence in the proceedings. He was employed at that time and still on medication for his depression. He said that he “totally feels disgusted for what I have done” and “totally feels sorry for [the victim] knowing she’s got to go through this trauma for the rest of her life possibly. If I could turn back time and take back things, if I could I would”. He denied he acted as “a predator … just watching this young girl drink herself to oblivion till she got to a certain stage where you could take advantage of her”.

18. Amongst other things, the applicant’s mother confirmed the major emotional consequences for the applicant of the marriage break up, including his becoming suicidal. A friend of the applicant also gave evidence that the actions stated in the Agreed Facts of the applicant were not at all like him and that he had always been respectful to women so far as she had observed. The Captain of the Local Volunteer Rural Fire Service also gave evidence on the applicant’s behalf. The applicant was a member of his brigade. He had a high opinion of the applicant’s character. He also became very concerned about the applicant’s mental health in November and December of 2012 and believed that he was suicidal. Much the same evidence was given by the Deputy Captain of the fire brigade with which the applicant served. All these witnesses considered that the applicant’s conduct was contrary to his character as they knew it to be.

19. Ms Anna Robilliard provided a report following a consultation with the applicant in early October 2012. Amongst other things, he told Ms Robilliard that he could not remember taking the victim to his home or having sexual intercourse with her although he accepted that DNA evidence proved that he did so and that he was responsible for the offences. Despite this lack of memory of the offences, he expressed disgust for his behaviour. Ms Robilliard warned against assuming that the applicant’s denial was deliberate and conscious since such behaviour –

“ … is often a defence mechanism that allows the person to reduce distance between their actions and their attitudes condemning such behaviour…[and in] some instances it may also be motivated by the fears of how their offending behaviour would be judged by both themselves and others”.

20. As the sentencing judge noted, Ms Robilliard did not suggest any connection between the (accepted) emotional and psychological state from which the applicant was suffering at the time of the offence and the offending behaviour itself. His Honour said, as to this matter –

I can only come to the view that the breakdown of the marriage has caused the offender significant psychological reaction and this is either allowed previously controlled weakness to rise to the surface or is causative. Ms Robilliard, whose views I accept as I do Ms Young’s, does not espouse such breakdown was causative. However, it did no doubt play a significant role in the commission of the offences.

21. As to the evidence of the applicant’s good character, his Honour said –

The offender has no criminal convictions and, hence, limited leniency may be extended, and I say limited leniency because frequently these types of offences are committed by persons with little or no convictions.

His Honour accepted, as I read his reasons, that this evidence together with that of remorse and contrition, justified the conclusion that the applicant had good prospects of rehabilitation with little likelihood of reoffending. These factors, together with the fact that this would be his first time in prison, his psychiatric condition and need for psychological assistance comprised special circumstances justifying a variation of the statutory ratio between the parole period and the overall sentence.

Submissions

22. As to the first ground of appeal, Mr Barrow of counsel for the applicant submitted that the final sentence of the sentencing judge’s discussion of the objective seriousness of the offences (set out in the passage quoted above) is a clear reference to the measure of seriousness to which the standard non-parole period applies. Mr Barrow pointed out that the circumstance of aggravation particularised in the two charges was that the victim was under 16 years of age – in fact, she was just over 15 years and 6 months of age – at the time of the offences. It is important, he submitted, to take into account that this circumstance of aggravation would encompass a like offence committed against a child who had just turned 10 years of age, a manifestly far graver offence, all other things being equal. Mr Barrow pointed to the limited number of other aggravating circumstances. Thus although the victim was vulnerable by reason of her intoxication, it is clear that this was self-induced, the applicant not having made the alcohol available to her and not having encouraged her to drink. Whilst the offending was predatory, there was limited planning. There were no threats or violence except for that involved in the rough nature of the intercourse itself. There was no degrading or humiliating conduct aside from that inherent in the sexual acts themselves. On the other hand, Mr Barrow conceded that the applicant clearly breached the trust placed in him by the complainant in accompanying him from the campsite. Mr Barrow therefore submitted that it was not open to the sentencing judge to conclude that the offending conduct fell above the middle of the range of objective seriousness for this particular offence. Mr Barrow accepted the applicability to his submission of the following statement (frequently repeated) from the judgment of Spigelman CJ in Mulato v R [2006] NSWCCA 282 –

[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised.

It follows that, to succeed on this ground, it is not enough to persuade this Court that the offences in question might reasonably be regarded as less than the middle of the range of objective seriousness: it is necessary to establish that such a view was not reasonably open.

23. For its part, the Crown submitted that the victim was vulnerable by the degree of her intoxication, the offences involve a breach of trust, the applicant did not desist despite the victim’s protests, the criminal activity was planned, even if only opportunistically and caused injuries to the victim. It was further submitted by the Crown that, given that the starting point for the sentence was 8 years which (absent special circumstances) would result in a non-parole period of 6 years or only 60% of the standard non-parole period of 10 years, the judge’s reference to the “scale constructed for such offences” may rather have been a reference to sexual assaults perpetrated on young intoxicated victims rather than to the standard non-parole period.

23. In respect of Count 2, Mr Barrow relied on s 21A(3)(e) and (f) of the Crimes (Sentencing Procedure) Act 1999 which provide that a lack of prior convictions and the fact that the offender was previously a person of good character are mitigating factors to be taken into account in determining the appropriate sentence. He pointed out that the sentencing judge accorded the offender’s clear criminal record only limited leniency because “frequently these types of offences are committed by persons with little or no convictions”. Although his Honour referred to the fact that the applicant had no criminal record as well as being a person of good character (the latter a fact his Honour appears to have accepted) his Honour did not refer to the latter factor as mitigatory. Mr Barrow took the Court to the following passage from Ryan v R (2001) 206 CLR 267; [2001] HCA 21, where McHugh J observed –

[23] It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's "previous" or "otherwise" good character …

[25] Second, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances.

25. So far as the sentencing reasons for according the applicants clear record as justifying only “limited leniency” Mr Barrow cited Weininger v R [2003] HCA 14; 212 CLR 629 where Kirby J observed –

[58] The terms of par (m) also make it clear that "character" and "antecedents" are viewed by the Parliament, as by the common law, as separate considerations. Each of them is relevant to sentencing. "Antecedents" refers to any past criminal conviction, agreed or proved. Of course, past criminal convictions may also be relevant to a court's assessment of the "character" of the person being sentenced. However, for a very long time, the absence (or existence) of prior convictions and the fact that a person is a first offender have been regarded as separate and special considerations in sentencing. The absence of prior convictions (quite apart from issues of character) will usually attract more lenient punishment. In part, it recognises the fact that a first offender's lapse may be treated as exceptional, atypical and out of character. In part, it also reflects the experience of the criminal justice system that many of those who come before courts for sentencing are repeat offenders who, for that reason, must be treated more seriously because they have been repeatedly shown to be in breach of the law and have repeatedly obliged the mobilisation of the agencies established by society to defend it from crime.

[59] A first offender may, or may not, otherwise have a good character. He or she may simply have been lucky in not having been apprehended before. But this fact does not justify disregard for the separate consideration of a first offender's status as such, apart from any consideration of the character of that offender. The express differentiation between the two concepts in s 16A(2)(m) makes this point abundantly plain.

26. In sum, Mr Barrow submitted that the applicant’s good character combined with his lack of prior convictions demonstrated that the offences were out of character and should be seen as an aberration by a person who is likely to be persuaded from further criminality by a relatively lenient sentence. It is submitted that the sentencing judge minimised the significance of these factors, although his Honour took the applicant’s character into account when dealing with the prospects of rehabilitation for the purpose of considering the question of special circumstances.

27. The Crown’s submissions as to the second ground of appeal noted that the sentencing judge referred to the fact that the applicant had no previous convictions and evidentially accepted the evidence of his otherwise good character, submitting that what weight should be given to these considerations was a matter for discretionary evaluation with which this Court will not lightly interfere. The Crown submitted that there was nothing in the reasons given by his Honour which suggested that he did not give adequate consideration to these factors and accord them appropriate weight or, to put it more accurately, this Court would not find that his Honour erred when dealing with these aspects of the evidence.

Consideration

28. If the sentencing judge’s reference to the “constructed” scale is to be taken as a reference to the standard non-parole period – which is the only meaning it is capable of bearing – I consider, with respect, that it was not reasonably open for his Honour to conclude that the offences were above the middle of the range of objective seriousness. The matters identified by his Honour for increasing the seriousness of the offence beyond the middle of the range were that these crimes are prevalent and very serious, the need to protect young persons from predators as well as from themselves when they put themselves into dangerous situations, that the applicant had acted in a predatory way and offered the victim a lift intending to sexually interfere with her. There is no doubt that the offences were serious but it is necessary to consider the range of conduct comprehended by s 61J of the Crimes Act. In my view there was nothing in the facts that took this case above the middle of the range of objective seriousness.

29. It follows that his Honour erred in respect of this matter. Since the standard non-parole period is a significant marker to be applied to the setting of a sentence, this error cannot be regarded as merely technical and, unless this Court were satisfied that it did not in the result influence his Honour’s sentence, it must result in the quashing of the sentence if a lesser sentence is warranted in law. As pointed out above, the Crown submitted that the sentence and non-parole period actually imposed by the sentencing judge is so markedly at odds with finding that the objective seriousness of the offence exceeded the middle of the range that the Court should infer the error had not actually affected the outcome. I agree that there is a marked disparity between his Honour’s finding as to seriousness and the sentence itself. The difficulty with this analysis is that the ultimate sentence reflects also, of course, the relevant subjective features to which his Honour gave significant emphasis. In the result, I do not think it is appropriate to disregard his Honour’s conclusion about the level of objective seriousness and infer that he ignored it when setting the sentence. Accordingly, a patent material error has been demonstrated.

30. So far as the extent of leniency appropriate to be extended because the applicant had no prior criminal record is concerned, I am also satisfied, with respect, his Honour erred. Of course the extent of leniency afforded a first time offender must depend upon the circumstances of the offence and the other relevant features of the case. In some cases the leniency which would otherwise be afforded might be limited by the fact that the lack of prior criminal history is a factor in the ability of the offender to commit the offence, as with drug couriers for example. Together with otherwise good character, it might provide an opportunity for a sexual predator to take advantage of his position (say, as a cleric or a teacher) to commit offences on children in their care although, even in these cases, it is not entirely irrelevant. The mere fact, as it seems to me, that particular offences may frequently be committed by persons with no prior convictions, cannot mean that the leniency otherwise to be afforded should be limited by that fact. All offenders are first offenders at one time. It does not appear whether his Honour’s view of this matter significantly affected the ultimate sentence but it is fair to infer, given his Honour’s language, that it had some effect. Given my conclusion in respect of the assessment of objective seriousness, it is not necessary to determine whether this error was sufficiently material to require the sentence to be quashed.

31. The last matter requiring consideration is the treatment by the judge of the uncontested evidence of good character. It is not controversial that his Honour was bound to take this into account when fixing the sentence. Here as his Honour noted, there was abundant evidence that, aside from the particular offences for which he was being sentenced, the applicant was well thought of in the community and his good character went much further than the mere fact that he had no criminal convictions on his record. The evidence of Mr Waters and Mr Star, both of whom worked with the applicant in the Rural Fire Service, established that the applicant excelled in this very substantial commitment of serving the community. Furthermore, both these senior officers of the Fire Service and the other witnesses, who knew the applicant well, deposed to his character generally, in particular, that the offences were an aberration and completely inconsistent with the character of the applicant as they knew it. However, although recording that the applicant had no criminal associates, had a very good work record and was held in high regard, his Honour referred to his being of good character only in the context of his prospects for rehabilitation. In respect of possibly according the applicant leniency, his Honour referred only to his clear criminal record, and made no reference to his good character in this regard. On a careful reading of his Honour’s reasons, I am satisfied that his Honour confined the relevance of character to the issue of rehabilitation in the context of special circumstances and did not give the applicant full credit for this important element of his subjective case.

Conclusion

32. It is necessary for this Court to reconsider the sentences under appeal in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW). So far as the head sentence is concerned, having regard to all the circumstances (sufficiently set out in the body of this judgment) I propose that the starting point for the sentence on each offence should be 7 years. Deducting 25% for the appellant’s early plea yields a head sentence of 5 years and 3 months (rounded down slightly). In respect of the non-parole period, I would accept the findings of the sentencing judge as to special circumstances and thus vary the ratio stipulated by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, applying the same percentage as did his Honour would result in a non-parole period which, to my mind, would be “unreasonably disproportionate to the nature and circumstances of the offence” (vide s 23(3) of the Sentencing Procedure Act). Put otherwise, a lesser non-parole period than that which was imposed by the sentencing judge is not warranted. Accordingly I propose the following orders:

1. Leave to appeal granted.

2. Appeal upheld.

3. On each count the applicant is sentenced to a term of imprisonment for 5 years and 2 months comprising a non-parole period of 3 years commencing on 7 December 2012 and expiring on 6 December 2015 with a balance of term of 2 years and 2 months expiring on 6 February 2018.

33. McCALLUM J: I have had the benefit of reading the judgment of Adams J and the separate judgment of the Chief Judge at Common Law. With great respect to their Honours, I do not agree that the sentencing decision entailed error.

34. Ground 1 asserts error in the assessment of the objective seriousness of the offending. The offences to which the applicant pleaded guilty were offences of sexual intercourse without consent in circumstances of aggravation, contrary to s 61J of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the victim was under the age of 16 years: s 61J(2)(d). The Crimes (Sentencing Procedure) Act 1999 (NSW) specifies a standard non-parole period of 10 years for an offence under s 61J, representing the non-parole period for “an offence [under that section] that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”: s 54A(2).

35. The argument in support of ground 1 focuses on that provision and is based on the following remarks of the sentencing judge:

On the objective side, I regard these offences as being above the middle of any scale constructed for such offences and must result in a prison sentence.

36. The applicant argued that, by those remarks, the judge was to be understood to be “attempting to comply with the requirement that there be an assessment of objective seriousness as part of the process of using the nominated standard non-parole period as a guidepost towards an appropriate sentence”. Justice Adams, with whom Hoeben CJ at CL agrees on this issue, has approached his consideration of this ground on that premise, concluding that the sentencing judge’s reference to a “constructed” scale is to be taken as a reference to the standard non-parole period.

37. Before considering that issue, it is instructive to consider the legal context in which the sentencing judge’s remarks were made. Prior to the decision of the High Court in Muldrock v R [2011] HCA 39; 244 CLR 120, the operative provision relating to standard non-parole periods (s 54B(2)) provided:

When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

38. That provision had been understood to state, in mandatory terms, a requirement which constrained the sentencing discretion in setting the non-parole period for an offence for which a standard non-parole period was prescribed. In order to comply with the perceived mandate, it was understood that the court had first to determine whether there any reasons for not imposing the standard non-parole period. To that end, the court was required to measure the objective seriousness of the offence against the construct of an abstract offence in the middle of the range of objective seriousness (thus taking a two-stage approach, starting at the standard non-parole period and then determining how far and in which direction to move away from it in the particular case).

39. On that understanding, this Court had held in a number of cases that, in the case of an offence carrying a standard non-parole period, the sentencing judge was required to make a specific finding as to where the offence fell in the range of offending covered by the section and that failure to do so amounted to error. The relevant authorities are summarised in the judgment of Simpson J in McEvoy v R [2010] NSWSC 110 at [69] to [85]; Grove J and R A Hulme J agreeing at [1] and [116] respectively. Her Honour did not express unqualified support for that line of jurisprudence, saying at [86]:

Although I perceive some practical difficulties in the application of these strictures, it is not for this Court as presently constituted to depart from considered principles stated and accepted by previous Benches. Counsel for the Crown was unable to specify just what application of these decisions would involve.

40. The decision in McEvoy thus endorsed (at [86]) the requirement for a sentencing judge at least to indicate:

that a particular offence was significantly above or below mid-range, slightly above or below mid-range, or at the top or bottom of the range.

41. Justice Simpson’s reservations were vindicated. In Muldrock, the High Court held that a standard non-parole period should not be treated as having determinative significance but operates rather as a legislative guidepost, standing as one of the many relevant factors to which the sentencing court must have regard. On that basis, the High Court held that, when sentencing for an offence that carries a standard non-parole period, the court is not required to make an assessment of whether the offence was within the midrange of objective seriousness (Muldrock at [25]); nor is it required to classify the objective seriousness of the offending (Muldrock at [29]). The sentencing court’s task is, rather, as described by McHugh J in Markarian v R [2005] HCA 25; 228 CLR 357 at [51]:

The judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.

42. The decision in Muldrock roundly rejected the two-stage approach. It is clear from that decision that failure to make a specific finding as to where the offence falls in the range of offending covered by the section can no longer be regarded as amounting to error in itself. It remains, of course, a critical aspect of the sentencing task in every case, whether or not a standard non-parole period applies, for the court to make an assessment of the objective seriousness of the offending for which the offender stands to be punished. What emerges from Muldrock, however, is that it is not necessary to articulate such an assessment by reference to the hypothetical scale of offending covered by the offence, let alone to attempt to do so with the exacting precision required by the authorities considered in McEvoy.

43. Section 54B(2) was amended after the decision in Muldrock to reflect the principles stated by the High Court in that case, now providing:

The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

44. It remains permissible (but unnecessary) to record a finding as to objective seriousness expressed by reference to the hypothetical scale of offending covered by the section. Such a finding reflects the sentencing judge’s evaluative judgment of one of the factors relevant to the sentence. Assuming adherence to the principles stated in Muldrock, this evaluative judgment cannot be understood to indicate a starting point in fixing the non-parole period.

45. A ground of appeal asserting error in the expression of such an evaluative judgment faces a number of difficulties. The first is the narrow significance of the concept comprehended in such a finding. As explained in Muldrock at [27], meaningful content cannot be given to a finding as to where an offence falls in the range of offending covered by the relevant section by taking into account the circumstances of the offender. The High Court explained that the concept of an offence in the middle of the range of objective seriousness is to be determined wholly by reference to the nature of the offending (a concept now reflected in the statute).

46. Secondly, if error is to be discerned, there must be some clarity as to the range of offending under consideration by the sentencing judge. That is the principal difficulty in the present case. Section 61J of the Crimes Act specifies nine potential circumstances of aggravation. According to the principles approved (with some reservation) in McEvoy, had the sentencing judge intended to make a finding as to objective seriousness by reference to the whole range of offending covered by that section, he ought to have done so having regard to all of the various circumstances of aggravation contemplated. In that event, different considerations would arise. The range of possible conduct within each kind of aggravation and among their many possible combinations is considerable. But it must be recalled that, in accordance with Muldrock, there was no obligation to make such a finding.

44. In any event, I do not think that is what his Honour meant. Rather, I apprehend his Honour meant no more than to record his view that the offences were above whatever might be hypothesised as the middle of the range of sexual assaults on victims under the age of 16.

45. That emerges from the passage in the remarks on sentence in which his Honour introduced his assessment of objective seriousness, as follows (at 7.2):

The objective case is a very strong crown case, indicating a serious predatory attitude by the offender. I have regard to the ingredients of the offence, being the age of the victim, only fifteen, her obvious signs of intoxication, her placing of trust in the offender, in that he indicated he would drive her home, and the age and sobriety of the offender.

49. The impression that the judge was considering only s 61J(2)(d) at that point is reinforced by his generic reference to offences of the kind he described as “prevalent” and the need to protect young people who put themselves into dangerous situations (set out in the judgment of Adams J).

50. On the premise that his Honour was expressing a view as to the relative seriousness of these offences only by reference to other offences under s 61J(2)(d) (sexual intercourse without consent where the circumstance of aggravation is the fact that the victim was under 16), his Honour’s finding may readily be understood. I would note, in that context, that I read the decision in Muldrock as discouragement to precisely this kind of technical analysis or excessive refinement of the task of sentencing judges.

51. Finally, there can be no single, correct finding as to where an offence falls in the range of offending covered by the relevant section. Where a sentencing judge chooses to express a finding on that issue, it may only be impugned if it was not reasonably open, having regard only to the objective nature of the offending (not the circumstances of the offender).

52. Assuming his Honour meant no more than to say that each offence was above midrange for an offence contrary to s 61J(2)(d), I am not persuaded that the finding was not open. Leaving aside the circumstance of aggravation, the applicant engaged in the predatory behaviour of waiting and watching while a girl at a beach at night, whose friends had gone home, became so intoxicated as to be completely vulnerable. In my respectful opinion, the fact that her state of intoxication was self-induced is wholly irrelevant. Having observed her to become increasingly vulnerable, the applicant preyed on her vulnerability by offering her the safety of a lift home, as she clearly wanted. Instead, he betrayed her trust by taking her to his home and, while she was in a state in which she was unable to fend off his assault, he committed two acts of sexual intercourse without consent which were painful and caused injury.

53. The circumstance of aggravation was that the victim was under the age of 16 years. I accept that the fact that she was 15 rather than, say, 5 or 10 is significant and reduces the seriousness of the aggravating factor to a degree, but that is not the only element of the offences and it does not derogate from the otherwise serious nature of the offending.

54. While reasonable minds might differ as to the assessment of objective seriousness in those circumstances, I am not persuaded that the conclusion reached by the sentencing judge was not open.

55. It is clear from the sentences imposed that his Honour gave considerable weight to the applicant’s subjective circumstances. Accordingly, ground 2 must also fail, in my view.

56. For those reasons, I agree with the orders proposed by Hoeben CJ at CL, albeit not for the reasons his Honour has stated.

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Decision last updated: 12 May 2015