ST v The Queen

[2017] NSWCCA 245

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	ST v R [2017] NSWCCA 245
Hearing dates:	19 May 2017
Date of orders:	11 October 2017
Decision date:	11 October 2017
Before:	Johnson J at [1] Rothman J at [2] Lonergan J at [3]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	SENTENCE – appeal against sentence – aggravated sexual assault of victim under authority – aggravated sexual intercourse with person older than 14 years but under 16 years – indecent assault on person under 16 years – whether the sentence proceedings miscarried as the indictment not properly presented – whether sentencing judge double counted as an aggravating factor an element of the offence – whether manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) ss 61J(1), 61M(2), 66C(4) Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2), 32, 53A(2) Criminal Procedure Act 1986 (NSW) s 20
Cases Cited:	AG v R [2016] NSWCCA 102 Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558; [2000] HCA 54 Hili v The Queen (2010) 242 CLR 520; 204 A Crim R 434; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McDonald v R [2015] NSWCCA 280 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 Pham v R [2014] NSWCCA 115 R v Cramp [2014] NSWCCA 264 R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 R v Reilly [2012] NSWCCA 166 R v Simpson (2001) 53 NSWLR 704; (2001) 126 A Crim R 525; [2001] NSWCCA 534 Swansson v R (2007) 69 NSWLR 406; 168 A Crim R 263; [2007] NSWCCA 67 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Vandeventer v The Queen [2013] NSWCCA 33
Category:	Principal judgment
Parties:	ST (Applicant) Regina (Crown)
Representation:	Counsel: K Stares (Applicant) S Hughes (Crown)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2014/177242
Publication restriction:	Non-publication order in relation to the name of the victim and the witness ET and anything that might identify them
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 28 September 2015 Before: Farmer SC DCJ File Number(s): 2014/177242

Judgment

1. JOHNSON J: I agree with Lonergan J.

2. ROTHMAN J: I agree with Lonergan J.

3. LONERGAN J: The Applicant sought leave to appeal against the aggregate sentence imposed upon him by his Honour Judge Farmer SC on 28 September 2015 in the District Court at Parramatta.

4. The Applicant was sentenced in relation to a series of sexual offences committed between 2012 and June 2014 involving his step-daughter. At the time, she was aged between 13 and 15 years and the Applicant was aged between 49 and 51 years.

5. The Applicant pleaded guilty to the following charges:

1. Count 1 – Between 1 January 2012 and 31 December 2012, assault with act of indecency contrary to s 61M(2) of the Crimes Act 1900, an offence carrying a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years.

2. Count 2 – Between 1 January 2012 and 31 December 2012, assault with act of indecency contrary to s 61M(2) of the Crimes Act 1900, an offence carrying a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years.

3. Count 3 – Between 1 January 2013 and 31 December 2013, having sexual intercourse with a child above the age of 14 and under the age of 16 years in circumstances of aggravation contrary to s 66C(4) of the Crimes Act 1900, an offence carrying a maximum penalty of 12 years imprisonment.

4. Count 4 – On 13 June 2014, assault with an act of indecency a child under the age of 16 contrary to s 61M(2) of the Crimes Act 1900, an offence carrying a maximum penalty of imprisonment for 10 years with a standard non-parole period of 8 years.

5. Count 5 – On 13 June 2014, assaulting a child under the age of 16 and committing an act of indecency contrary to s 61M(2) of the Crimes Act 1900, an offence carrying a maximum penalty of imprisonment for 10 years, with a standard non-parole period of 8 years.

6. Count 6 – On 13 June 2014, having sexual intercourse with a person under 16 years of age without her consent, knowing she was not consenting, in circumstances of aggravation, namely that the victim was under his authority contrary to s 61J(1) of the Crimes Act 1900, an offence carrying a maximum penalty of 20 years imprisonment with a 10 year standard non-parole period.

6. In respect of count 3, the Applicant requested that three further offences be taken into account, involving the same victim and time frame, being two counts of aggravated sexual intercourse with a child aged between 14 and 16 years under authority, and one count of attempted sexual intercourse with a child aged between 14 and 16 years in circumstances of aggravation (under authority), contrary to s 66D of the Crimes Act 1900. The maximum penalty associated with the latter offence is 12 years imprisonment. These additional matters were to be taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.

7. On 28 September 2015, his Honour Judge Farmer SC sentenced the Applicant to an aggregate term of imprisonment for 9 years and 6 months commencing on 23 June 2014 and expiring on 22 December 2023 with a non-parole period of 6 years and 6 months expiring on 22 December 2020.

8. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the sentencing Judge noted the following indicative sentences:

1. Count 1 – 2 years imprisonment with a non-parole period of 12 months.

2. Count 2 – 2 years imprisonment with a non-parole period of 12 months.

3. Count 3 – 6 years imprisonment.

4. Count 4 – 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months.

5. Count 5 – 3 years imprisonment with a non-parole period of 2 years.

6. Count 6 – 7 years and 6 months imprisonment with a non-parole period of 5 years and 6 months.

Grounds of Appeal

9. By Notice of Application for Leave to Appeal filed on 8 February 2017, the Applicant relies upon the following grounds of appeal:

1. Ground 1 – The sentence proceedings miscarried as a result of the Applicant being sentenced on an indictment not properly presented.

2. Ground 2 – The sentencing Judge erred by taking into account a matter of aggravation that was an element of the offence.

3. Ground 3 – The sentence was manifestly excessive.

Facts of offences

10. What follows is drawn from the statement of agreed facts tendered at the sentencing hearing.

11. The victim is the stepdaughter of the Applicant. At the time of the offences, she was aged between 13 and 15 and lived with her mother, brother and the Applicant.

12. At some point in 2012, the Applicant purchased a skateboard for the victim. On return to their home, whilst the victim was laying on a couch in the lounge room, the Applicant laid next to her and placed his hand inside her jeans and underwear and rubbed the victim on the outside of her vagina.

13. On another day in 2012, the Applicant made the victim watch a pornographic video with him which involved teenage girls and older men engaging in oral sex. Whilst watching the video, the Applicant removed his pants and gestured for the victim to put his penis in her mouth. The victim felt forced to do so, and sucked the Applicant’s penis for a period of time. After a period of time, the victim gagged, stopped, and walked away from the Applicant.

14. On another date in 2012, the Applicant walked into the bathroom where the victim was undressing for a shower. The Applicant put his hands down the front of the victim’s pants and inserted his fingers into the victim’s vagina, causing her to feel considerable pain. She pushed the Applicant away and he left the bathroom.

15. On a date in 2012, the Applicant got into bed with the victim whilst she had been sleeping, kissed her on the mouth, put his tongue inside her mouth, and lay next to her. The Applicant said things like, “I do everything for this family and you guys do nothing in return, and your mum doesn’t do anything and I have to pay for everything. If it wasn’t for me, you guys wouldn’t be here”.

16. On a Tuesday in 2013, when the victim was 14 or 15 years old, the Applicant, having picked the victim up from school, instructed her to go into his bedroom and lay on the bed. The Applicant then knelt in front of the victim and removed her shorts and underwear and began licking her on the vagina. This incident was interrupted by the victim’s brother returning home from school.

17. On a day in the summer months of 2013 or early 2014, whilst the victim was at home with the Applicant, the Applicant instructed the victim to lie on his bed. The Applicant stood next to the bed, removed the victim’s shorts and underwear, took off his own shorts and attempted to place his erect penis into the victim’s vagina. The victim attempted to lock her legs together and was extremely frightened. The Applicant said, “I thought you wanted this” and the victim did not reply.

18. On Friday 13 June 2014 at about 10:00 pm, the victim went to bed and whilst she was trying to sleep, the Applicant came into her bedroom and laid down next to her under the blankets. He reached underneath her jumper and began to fondle her breasts and used both hands to squeeze her breasts. He then began caressing the victim’s thighs and placed one hand down the victim’s pants and underwear and began rubbing the outside of the victim’s vagina. He then got up and removed the victim’s pants and underwear, opened her legs, placed his face near her vagina and licked the victim’s vagina whilst holding her thighs apart. This particular sequence of events was interrupted by the victim’s younger brother coming into the room. He saw what was occurring and went to a neighbour’s house to fetch his mother. This led to the arrest and charging of the Applicant.

19. On interview with the police, the Applicant initially said that he had consumed six or seven glasses of red wine that evening, and that his activities with the victim that evening had been “a bit private between me and her”. When asked if he had gotten into the victim’s bed, he told police, “I don’t know why she’s telling you that”. He later in the interview told police that the victim asked him to touch her breasts and said “she wanted it”. He also stated that he did not wish to comment further because he “did not want [the victim] to get into trouble on this one”.

20. The Applicant consented to forensic procedures and swabs. Testing of swabs taken from the victim’s underwear were found to contain a DNA profile matching the Applicant.

21. The three offences that occurred on 13 June were disclosed by the victim in an interview on 16 June 2014. Other counts were disclosed in further statements she gave to the police on 18 August 2015 and 24 August 2015.

Procedural History

22. On 14 June 2014, the Applicant was charged with the offences committed on 13 June 2014. He entered a guilty plea to those charges on 3 December 2014.

23. On 12 February 2015, he was arraigned on an indictment which contained six counts, and pleaded not guilty to counts 1, 2 and 3 on that indictment, noting that counts 4, 5 and 6 on that indictment were offences to which he had already entered a guilty plea on 3 December 2014. Counts 1, 2 and 3 were listed for trial on 21 September 2015 at the Parramatta District Court.

24. As a result of further interview with the victim on 18 and 24 August 2015, three further charges were laid ex officio.

25. On 21 September 2015, the Crown presented an indictment containing six primary counts and two alternative counts, and the Applicant was arraigned in respect of this indictment. The Applicant pleaded guilty to counts 1, 4 and 5 on that indictment and the Applicant agreed, with the assistance of an interpreter and specific questioning of the sentencing Judge that the three ex officio matters were to be taken into account on a Form 1 schedule in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999. The Crown accepted those pleas in full satisfaction of the indictments (ROS p7 21/9/15).

26. With the aim of avoiding confusion, the parties resolved that a document in the form of an indictment would be tendered, setting out in chronological order all of the counts to which the Applicant had now pleaded guilty. This became Exhibit 4, the chronological indictment. This showed only the matters for which the Applicant was to be sentenced, and what had been counts 1, 4 and 5 on the trial indictment were described as counts 1, 2 and 3 respectively; and what had been counts 4, 5 and 6 on the arraignment indictment were described by their original numbers. Accordingly, it was clear that the Applicant was to be sentenced for the six offences set out at (3) above with three further offences to be taken into account on a Form 1 when sentencing for count 3.

27. The transcripts of the sentencing proceedings, the two mentions on 21 September, the further short hearing on 25 September, and the proceeding on 28 September 2015 all indicate that either an interpreter was present for the Applicant or the proceedings were adjourned so that an interpreter could be present.

28. On each of the sentencing mentions and hearings, the same counsel appeared for the Applicant.

29. In respect of the chronological indictment, the transcript indicates that this process was utilised with the consent of counsel for the Applicant.

Evidence concerning subjective matters

30. Tendered at the sentencing hearing were two character references from the Applicant’s sister and cousin concerning remorse expressed to them by the Applicant. The Applicant did not give evidence.

31. The Applicant came to Australia as a refugee in 1992, has a limited education and has worked in various positions involving construction of door frames for various employers. He met the victim’s mother in 1999, and whilst they had divorced in 2013, he remained living in the home of his ex-wife, the victim, and the victim’s younger sibling until his arrest in June 2014.

Findings of the sentencing Judge

32. The sentencing hearing commenced before his Honour Judge Farmer SC on 21 September 2015. There was some initial outlining of the history of the charges, and the status of the arraignment. An interpreter was made available and the Applicant was formally arraigned in relation to counts 1, 2 and 3 on the indictment (Transcript 21 Sep 2015, No 1, p 6) and entered guilty pleas for those charges. The Crown indicated that it accepted those pleas to those three charges and the ones to which the Applicant had previously been arraigned (together with the Form 1 offences) in full satisfaction of the indictments. The sentencing Judge formally confirmed with the Applicant that he requested that the offences on the Form 1 be taken into account (Transcript 21 Aug 2015, p 7).

33. The proceedings were mentioned again on 21 September and various documents including the statement of agreed facts were tendered without objection. At that stage, nothing was tendered on behalf of the Applicant and the sentencing hearing was adjourned part-heard to Friday 25 September.

34. On 25 September, a copy of a chronological indictment was tendered (Exhibit 4) but because of the absence of an interpreter, the sentencing hearing was adjourned to Monday 28 September.

35. On 28 September, an interpreter was sworn and available for the Applicant and the sentencing proceedings were continued. Oral submissions were made and written submissions provided. At the conclusion of submissions, the sentencing Judge delivered Remarks on Sentence and proceeded through the offences as set out in the chronological indictment having noted the history of the guilty pleas in relation to the various counts and noting the entitlement to a discount for the entry of early pleas of guilty. His Honour observed as follows (ROS 23-24):

There can be little doubt that the offences for which the offender is to be sentenced are offences which are objectively serious. In relation to all but one of those offences, there is a standard non-parole period applying, itself an indication of the seriousness of the offences.

Factors to be taken into account in relation to any finding about seriousness of the offences include, first, the relationship between the victim and the offender. Second, the victim’s age at various times throughout the course of the offending. Third, the nature of the assaults upon her, including the escalating seriousness of those assaults which, over the course of time, ranged from kissing the victim and putting his tongue in her mouth, through to digital penetration, fellatio, and cunnilingus. Fourth, the absence of any real consent in all the circumstances. Fifth, the impact upon the victim, and in that regard a victim impact statement has been tendered without objection. It is a typed document of some one and a half pages setting out the victim’s reaction to these offences including the emotional impact on her wellbeing, how it has changed her behaviour, and how it has generally impacted on her social life and relationships with others including impact on her financial position, housing, education and employment.

…

Other matters to be taken into account in assessing the objective seriousness of the offence are the fact that the offences were all committed in the home of the victim, that the offender abused the position of trust and authority that he held in relation to the victim, and that from the commencement of the offences she was young and vulnerable…

36. His Honour approached the sentencing by imposing an aggregate sentence with partial accumulation so that the totality of all the offences can be taken into account (ROS 17-18).

37. There was an exchange between the sentencing Judge and the Crown before the remarks on sentence were finalised as follows:

HH:   Gentlemen, before I do proceed to impose the aggregate sentence, is there anything either of you consider I have overlooked or not referred to?

Crown:   No, it’s only possibly a minor matter your Honour but I know how these things can be misconstrued. Your Honour mentioned a number of matters that could either be aggravating or relate to specific elements of the charges. Earlier in your Honour’s judgment I took your Honour to mean that where the aggravating feature was an element of the particular charge, your Honour didn’t take it into account. I think your Honour ended up saying that, in effect, at the end of the judgment. I just thought I’d clarify that.

HH:   Yes, there is no double counting as it were.

Crown:   Exactly.

38. This exchange is relevant to Ground 2 of the Applicant’s appeal and I will return to that issue.

39. The sentencing Judge indicated that in reaching his conclusion as to indicative sentences, he had assessed those taking into account the relevant matters under the Crimes (Sentencing Procedure) Act 1999 both in terms of matters in favour of the offender and matters that aggravate the offending noting that this included a reduction for the guilty pleas and taking into account the matters on the Form 1 (ROS).

Ground 1 – the sentencing proceedings miscarried as a result of the Applicant being sentenced on an indictment not properly presented.

Submissions

40. Ms Stares, counsel for the Applicant (who did not appear at first instance), submitted that the sentencing proceedings were “made difficult” for the sentencing Judge as a result of “multiple indictments, ex officio counts, and differences in the timings of the pleas of guilty”. It was submitted that Swansson v R (2007) 69 NSWLR 406; 168 A Crim R 263; [2007] NSWCCA 67 at [104]-[105] per Sully J and R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 are authority for the proposition that there can only be one indictment presented and that because here, more than one indictment was presented on the sentencing proceedings, a fundamental norm of criminal trial had not been properly complied with. It was further submitted that the indictment upon which the Applicant was sentenced was not the one on which he was arraigned and that this was a significant departure from the appropriate procedure set out in the Criminal Procedure Act 1986 (NSW). It was submitted that this irregularity rendered the sentencing proceedings a nullity.

40. Ms Stares in her written submissions asserted that there was “confusion” created by the use of the chronological indictment, and that the Applicant was never arraigned on that particular indictment, nor was leave or consent given to its presentation. It was argued that because the Applicant required an interpreter and there was complexity with the different charges being presented at different times, this added “significance to this complaint”, particularly given the Applicant’s limited educational background.

41. Ms Stares acknowledged in answer to questions from the Court during the hearing of the appeal however that the Applicant was represented by counsel at all the sentencing hearings, the statement of agreed facts was signed by counsel for the Applicant, written submissions on sentence were provided on 25 September by counsel for the Applicant which clearly referenced the chronological indictment, and there was no evidence that the Applicant did not understand what he had pleaded guilty to, or that he did not intend to plead guilty to the charges. Ms Stares was unable to provide any authority dealing with any issue arising from the manner of presentation of an indictment in sentencing proceedings.

42. The Crown disputed that there was any validity to this ground of appeal noting that the sentencing Judge had been carefully taken through the history of the pleas and that leave was obtained to present a second indictment to which no objection was taken by counsel appearing for the Applicant. The Applicant maintained his pleas of guilty in relation to the freshly presented matters and was arraigned on those counts. In the presence of counsel for the Applicant, the following exchange took place (21 September Transcript p 5):

HH:   Do you envisage filing a new indictment which has each of the counts listed, or are we just going to proceed off the two indictments?

Crown:   If your Honour doesn’t see any problem with it, I was hoping that we could just have the two indictments attached and a firm line drawn through the ones that hadn’t proceeded so that your Honour is, or whoever proceeds with the sentence, is not confused.

HH:   Yes, alright.

Crown:   But I’m happy to draft one up.

HH:   Well, we will proceed on the basis proposed unless I tell you or Mr Foster or both of you anything in the interim.

44. No objection was taken to the course proposed that the sentencing proceed on the two indictments, dated 12 February 2015 and 21 September 2015 respectively, and the matter was stood over part-heard to 25 September to take evidence on sentence.

45. On 25 September 2015, the chronological indictment (Exhibit 4) was provided to the Court to assist in the sentencing exercise. By this time it was clear that the Applicant had already been arraigned on all the counts referred to in that document. There was no “substitution” of Exhibit 4 for the earlier indictments, nor was the Applicant required to be re-arraigned in respect of anything mentioned in the chronological indictment. Again, no objection was taken to this course by counsel for the Applicant.

Decision

46. There was no error in the use of the chronological indictment which was provided to the Court to assist with navigating the chronology of the charges and items on the Form 1 for sentence. The chronological indictment was simply an aide to the sentencing Judge to complete that task.

47. Swansson and Janceski are authority for a confined principle that strict adherence to the rule of criminal procedure that in a criminal trial for every jury, only one indictment should be used. The principle has no application to sentencing proceedings where the matter proceeds other than by way of trial. Sentencing matters come forward in different ways, including Court Attendance Notices utilised in the Local Court where there is a committal for sentence and by use of an indictment in the Supreme and District Courts, where the plea occurs in one or other of those courts.

48. There was no departure from fundamental procedure. The use of the chronological indictment by the sentencing Judge has not rendered the sentencing proceedings a nullity and no error has been established. Quite apart from the absence of legal error in what occurred, it is clear that there is no procedural unfairness associated with these sentencing hearings. The Applicant was represented by the same counsel at each of the District Court sentencing proceedings, that is, both hearings on 21 September, the 25 September hearing, and the final hearing and Remarks on Sentence on 28 September. An interpreter was present on all but the 25 September hearing, which was specifically adjourned to 28 September so that an interpreter could be available to assist.

49. The pragmatism associated with the chronological indictment is evident on the transcript. There is no evidence of any misunderstanding on the part of the Applicant as to the offences for which he was being sentenced. His counsel on this appeal conceded as much in oral argument. There is also no evidence that due to language or education issues, the Applicant did not understand the charges for which he was being sentenced. This ground of appeal lacks any merit and I would reject it.

Ground 2 – the sentencing Judge erred by taking into account a matter of aggravation that was an element of the offence

50. To understand this ground, it is helpful to refer to the particular counts in issue.

51. Count 3 concerned the allegation that, between 1 January 2013 and 31 December 2013, the Applicant had sexual intercourse with a child aged between 14 and 16 in circumstances of aggravation contrary to s 66C(4) of the Crimes Act 1900, the circumstances of aggravation being that the victim was under the authority of the Applicant (s 66C(5)(d)).

52. Section 66C(4) provides as follows:

Child between 14 and 16—aggravated offence

Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years.

53. Count 6 referred to part of the conduct on 13 June 2014, that led to the charge pursuant to s 61J(1) of the Crimes Act 1900 of sexual intercourse with a person without her consent, knowing she was not consenting in circumstances of aggravation, namely that the victim was under the Applicant’s authority and was under the age of 16.

54. Section 61J provides as follows:

(1)   Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2)   In this section, circumstances of aggravation means circumstances in which:

(a)   at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(b)   at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(c)   the alleged offender is in the company of another person or persons, or

(d)   the alleged victim is under the age of 16 years, or

(e)    the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(f)   the alleged victim has a serious physical disability, or

(g)   the alleged victim has a cognitive impairment, or

(h)   the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or

(i)   the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

(3)   …

Submissions

55. The Applicant argued that the sentencing Judge made an error in his treatment of count 3 because he expressly stated that he took into account when assessing the objective seriousness of all the offences (ROS p 14) that:

…the offences were all committed in the home of the victim, that the offender abused the position of trust and authority he held in relation to the victim, and that from the commencement of the offences, she was young and vulnerable.

56. Further (at ROS p 16), the sentencing Judge observed:

All of the offences involved a gross breach of trust and all of them took place in the family home and, indeed within different locations within the family home. Each of the offences, as I say, involved the offender being the adult in charge of the victim and, as has been remarked upon on numerous occasions, children in the family situation are virtually helpless against sexual attack. Children have a right to be protected against sexual molestation within the family and this can only be achieved by the Court’s imposing sentences of salutary nature.

57. It was submitted that these comments indicated that the sentencing Judge engaged in double counting of matters that were already an element of the offence under s 66C(4).

58. By way of illustration of the asserted error by the sentencing Judge, the Applicant argued that when dealing with count 6, the sentencing Judge expressly referred to the fact that the circumstances of aggravation comprised part of the offence charged (that being that the offender was in a position of authority) but did not make such a clarification when dealing with count 3.

59. It was submitted that although the Crown drew the sentencing Judge’s attention to the possible interpretation of that part of his Remarks on Sentence, the error made by the sentencing Judge was not remedied. This submission was maintained despite the statement by the sentencing Judge in reply to the issue being specifically raised with him, “Yes, there is no double counting as it were”.

60. The Crown submitted that there was no error. The submissions on sentence specifically raised that in relation to all but count 6, the aspects of both the age of the victim and the fact that she was under the Applicant’s authority were built into the elements of the offences and were not additional aggravating factors. At the sentencing hearing the Crown singled out count 6 in order to submit that there were two factors of aggravation to be taken into account in respect of that offence, namely the victim being under the authority of the Applicant, as well as the victim’s age being under 16 years as set out in s 61J(2). This approach was consistent with authority that the presence of additional aggravating factors operate in further aggravation: McDonald v R [2015] NSWCCA 280 at [99]; AG v R [2016] NSWCCA 120 at [5]-[7].

Decision

61. At the commencement of the sentencing remarks the sentencing Judge made specific reference to the ingredients of counts 3 to 6. It cannot be said that the sentencing Judge was not cognisant that each count involved an element that the victim was subject to the Applicant’s authority. As submitted by the Crown, the comments on pp 12, 14 and 16 of the sentencing remarks were simply remarks dealing with the objective seriousness of the offending globally. The treatment of separate counts set out in the sentencing remarks at 18-19 simply reflect that in relation to count 6, there were two matters of aggravation corresponding to s 61J(2). There is no error and the criticism is not made out.

62. I accept the submission of the Crown that, even if the passages referred to on p 14 of the sentencing remarks, combined with the comments on p 12 and the comments on p 16 could be construed as suggesting an error as asserted by the Applicant, the sentencing Judge specifically disavowed that there had been any double counting in the exchange with the Crown set out in [35] above.

63. No error has been demonstrated and this second ground of appeal is rejected.

Ground 3 – the sentence was manifestly excessive

Submissions

64. The Applicant submitted that the sentence is manifestly excessive given that:

1. The Judge found that the objective seriousness of the offending was, in summary, low to mid-range.

2. Comparison with other cases demonstrates that the sentence imposed was one that was significantly higher than others involving a similar level of criminality.

3. Comparison with other cases involving a similar overall term involve a significantly higher level of criminality than the Applicant’s in the present case.

4. There was undue emphasis on the victim’s age and vulnerability.

5. There was an additional allowance for aggravation (as set out in ground 2), and this error affected the overall sentence.

6. The discount for the plea of guilty is stated in the judgment to have been “significant” and it should have been significant because the majority of the offences to which the Applicant were sentenced involved a plea of guilty at an early opportunity (although not the earliest opportunity).

65. The Applicant also submitted that the sentencing Judge’s discretion was infected by other issues; his findings of objective gravity were not reflected in the sentence imposed, there were difficulties with the indictment, the timing of the plea of guilty and resulting utilitarian value attributed to that plea was not specified in respect of each individual count, and that the standard non-parole period was treated as a requirement rather than a guidepost.

66. The Crown submitted that all of the complaints were baseless. In respect of Counts 1 and 2, the sentencing Judge determined these to be towards the low end of the range, although slightly towards the middle of the range. Although the discount applied for an early plea was not individually quantified, a 10% discount was appropriate. No submission to the contrary was made on behalf of the Applicant. Those counts were associated with a maximum penalty of 10 years with a standard non-parole period of 8 years. An indicative sentence of 2 years with a non-parole period of 12 months was well within the range.

67. The Crown noted that count 3 was described by the sentencing Judge as a mid-range of seriousness for offending of that kind. The plea was late, and there were three Form 1 offences, each carrying a maximum penalty of 12 years, with count 3 also carrying a maximum penalty of 12 years. There were no associated standard non-parole periods. The indicative sentence of 6 years was well within the range.

68. In respect of counts 4 and 5, the Crown pointed to the sentencing Judge’s finding that these were in the low to mid-range of objective seriousness and although the discount for plea was not quantified, 25% was conceded by the Crown as appropriate. The maximum applicable penalty was 10 years with a standard non-parole period of 8 years. An indicative sentence of 2 years 6 months with a non-parole period of 1 year 6 months for count 4, and 3 years with a non-parole period of 2 years for count 5 were all well within an appropriate range.

69. The Crown noted that count 6 was determined to be within the mid-range although towards the bottom-end of that mid-range. A 25% discount for an early plea was conceded by the Crown. The maximum penalty was 20 years, with a standard non-parole period of 10 years. An indicative sentence of 7 years 6 months with a non-parole period of 5 years 6 months was well within the range.

Decision

70. The principles in relation to assessing whether a sentence is manifestly excessive are well established and appellate intervention is not justified simply because a result arrived at is markedly different from other sentences that have been imposed in other cases. Nor is the fact that this Court may have exercised its sentencing discretion differently the test: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Lowndes v The Queen (1999) 195 CLR 665 at 671-672; [1999] HCA 29; Hili v The Queen (2010) 242 CLR 520; 204 A Crim R 434; [2010] HCA 45 at [55].

71. The Applicant needs to demonstrate that the length of the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the Applicant even though how and where is not apparent from the statement of the sentencing Judge’s reasons: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen at [58]-[59], [75]-[76]. The Applicant needs to establish that the sentence was unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558; [2000] HCA 54 at [6].

72. As this Court observed in Pham v R [2014] NSWCCA 115 at [57], there are considerable limitations in relying upon a series of individual cases to establish some kind of range of sentences.

73. Further, in Vandeventer v R [2013] NSWCCA 33 at [45], Adamson J (with whom McClellan CJ at CL and Rothman J agreed) observed:

One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the Applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.

74. I do not consider that the other sentencing cases relied upon by the Applicant assist his claim that the aggregate sentence was manifestly excessive.

75. It is evident from the Remarks on Sentence that a number of factors informed the sentencing Judge’s view of the seriousness and circumstances of the offending. There were a number of offences over a period of time, the victim was vulnerable and in a reliant relationship with the Applicant, there was a significant age difference, and that as the offending happened in her own home, she was in effect trapped on a number of occasions when home alone with him. It was observed that the Applicant was not entirely remorseful at the time he was interviewed, attempted to blame the victim, and that the sentencing Judge observed that his pleas of guilty in relation to the offences were made in light of a very strong Crown case against him.

76. The sentencing Judge made clear that partial accumulation was necessary to reflect the total criminality of all of the offences, as well as observing that all but one of the offences had a standard non-parole period imposed which of itself highlighted the objective seriousness of those offences.

77. Whilst the sentence may be considered to be substantial, it involved repeated offences against a young and vulnerable child and was well within the exercise of proper sentencing discretion for offences of this kind having regard to the circumstances of the offences and the offender and general sentencing principles.

78. The Applicant has not demonstrated that the sentence imposed was manifestly excessive. I would reject the third ground of appeal.

Conclusion

79. The Applicant has failed to make good any of his grounds of appeal.

80. I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

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Decision last updated: 06 April 2018